Cost Inflation In Alberta Litigation: The Grimes Multiplier

Published date12 January 2024
Subject MatterLitigation, Mediation & Arbitration, Trials & Appeals & Compensation
Law FirmCLC (Canadian Litigation Counsel)
AuthorShad Chapman (Brownlee LLP) and Jack Stout, Student-at-Law (Brownlee LLP)

Case citation: Grimes v Governors of the University of Lethbridge, 2023 ABKB 432

In the Alberta Court of King's Bench decision in Grimes v Governors of the University of Lethbridge, 2023 ABKB 432, Justice Graesser looks at the trend towards increasing party costs to be based on a percentage of the winning party's actual fees and the decision in McAllister v Calgary (City), 2021 ABCA 25. Justice Graesser's decision suggests that those claiming that the Bench is moving away from Schedule C are prematurely and incorrectly coming to that conclusion. He also creates a 1.25 costs multiplier that could have a large impact on costs awards going forward.

Facts

Mr. Grimes was suspended from the University of Lethbridge following a series of communications involving a professor he was unhappy with. Grimes' appeal of the decision was dismissed by the University's Board of Governors. Grimes then applied for judicial review of the University's decision. Prior to the judicial review going ahead, the University made a Calderbank offer that Grimes rejected (note: a decision to reject a Calderbank offer is one which a court can consider when awarding costs). The judicial review upheld the University's decision and did so overwhelmingly in the University's favour. Submissions were made for costs which led to the decision covered below.

Analysis

In their submissions for costs, the University argued that they should get 70% of their solicitor-client costs (the actual fees their paid their lawyer) based on a variety of factors that Justice Graesser summarized as follows:

[4]...

1. The University's counsel wrote [Grimes] on September 8, 2022 offering to accept a discontinuance of the Application without seeking costs against the Applicant;

2. It encouraged [Grimes] to get legal advice;

3. The University was entirely successful - it was not a "close case";

4. The Application dealt with an important issue, which was finally resolved;

5. The University was obliged to fully defend the Application;

6. The Application had no basis for success; and

7. Rule 1.2(2)(c) encourages early settlement, and [Grimes] rejected a reasonable Calderbank offer.

The University's argument that they should receive a certain level of indemnity centred around these factors and the decision in McAllister v City of Calgary, 2021 ABCA 25. In addressing the University's argument and interpreting McAllister, Justice Graesser contextualizes the decision. The McAllister decision was delivered right before the...

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