Court Costs Part 2: Amendments To Schedule C To The Alberta Rules Of Court

• Published date: 04 November 2020
• Subject Matter: International Law, Litigation, Mediation & Arbitration, International Trade & Investment, Trials & Appeals & Compensation
• Law Firm: Lawson Lundell LLP
• Author: Mr Kyle Gardiner

Two year ago, Grant Vogeli and I wrote a blog post discussing various approaches to calculating court costs in Alberta. In that post, we lamented that the Tariff of Recoverable Fees in Division 2 of Schedule C'the cost tariff which guides judges' decisions on costs'had not been updated for over 20 years, leading increasingly to court cost awards that were only 10-15% of a successful party's actual legal costs incurred. Oftentimes, cost awards were even less than that.

Earlier this year, the government amended the Alberta Rules of Court, and those amendments included an update to Division 2 of Schedule C. The amendments to the tariff became effective May 1, 2020 (See Order in Council 078/2020 here). These amendments follow the comments of multiple Judges from multiple courts in Alberta expressing similar frustrations with Schedule C's increasing antiquity.

Prior to the amendment, in Styles v Caravan Trailer Lodges of Alberta Limited, 2019 ABQB 558, Justice Jones said (at para 48) "Unfortunately, the Court's ability to achieve a fair and principled costs award has been increasingly hampered by the framework at its disposal, namely Schedule C to the Rules of Court, [which] has not been updated in over twenty years." In Geophysical Service Incorporated v Falkland Oil and Gas Limited, 2019 ABQB 314, Justice Woolley said (at para 28) "Without some sort of inflationary adjustment Schedule C risks becoming merely an artifact."

The outdated amounts listed in Schedule C gave rise to various lines of authority employing some unique approaches to court costs, in an attempt by judges to reach a more just result than could be obtained by reference to Schedule C alone, absent legislative intervention. For example, see the case of Weatherford Canada Partnership v. Addie, 2018 ABQB 571, where Justice Shelley summarized a number of cases that used various methods to calculate costs including a percentage of complete indemnity, an adjustment to the Schedule C tariff by changing the column, multiplying the column or applying an inflation factor to the tariff amount, or a hybrid approach where costs for different portions of the case are assessed differently.

As you might imagine given the length of time that Schedule C has been in force unamended, the new tariff provides for a significant increase in the costs awarded for each item listed in Schedule C, as well as the amount of recoverable fees for each item of work under every column. On average, the amounts to be awarded...