Hamm v Canada (Attorney General), 2021 ABQB 159

Court of Queen’s Bench of Alberta Citation: Hamm v Canada (Attorney General), 2021 ABQB 159 Date: Docket: 1603 18759 Registry: Edmonton Between: Matthew Christopher Hamm, Shawn Curtis Keepness and Taylor James Tobin Respondents (Plaintiffs) - and - The Attorney General of Canada Appellant (Defendant) _______________________________________________________ Reasons for Decision on Costs of the Honourable Madam Justice Susan L. Bercov _______________________________________________________

Introduction [ 1 ] This is my cost decision following a successful appeal by the Defendant (“Canada”) from a Master’s decision dismissing Canada’s application to stay this action. The stay decision is reported at 2020 ABQB 765 . The parties could not resolve costs.

Each party provided written submissions regarding costs. [ 2 ] Canada, as the successful party, seeks costs of $5,600.18 for two half-day special chambers applications: the initial application before the Master and the half-day appeal before me of the Master’s decision. [ 3 ] The Plaintiffs argue there are special circumstances justifying a departure from the general rule that a successful party to an application is entitled to costs. [ 4 ] I conclude that the novelty of the issue determined in the appeal justifies a departure from the general rule. Each party shall bear their own costs.

Position of the Parties [ 5 ] Canada relies on the general rule that, as the wholly successful party in its application for a stay of the action, Canada is entitled to costs payable forthwith for the initial stay application before the Master and the successful appeal before me. [ 6 ] Canada seeks costs of $5,600.18 using column 5 of

Schedule C for two half-day applications requiring written briefs. Included in the $5,600.18 is a small amount for disbursements. [ 7 ] The Plaintiffs do not dispute the calculation of the amount of costs Canada seeks. While the Plaintiffs concede the general rule that costs follow the event, the Plaintiffs argue that the following circumstances justify a ruling that each party bear their own costs or that costs be ordered in the cause: a. Canada’s delay in bringing the stay application; b. The Plaintiffs pro-active conduct in moving the appeal of the stay application forward; and c.

The novelty of the issue determined in the stay application. Analysis [ 8 ] The presumption in the Rules is that the successful party is entitled to costs. Exceptions can be made in appropriate cases: Elder Advocates of Alberta Society v Alberta Health Services, 2021 ABCA 67 . The issue is whether this is an appropriate case. [ 9 ] In determining a proper cost award, r 10.33 of the Alberta Rules of Court provides guidance on the factors to consider. [ 10 ] One factor under r 10.33 is the conduct of the parties.

The Plaintiffs argue that Canada’s conduct is a relevant factor to consider as Canada delayed in bringing the stay application. In addition, Plaintiffs’ counsel took proactive steps to have the appeal heard following cancellation of the appeal due to Covid-19. [ 11 ] I am not satisfied that Canada’s conduct justifies a departure from the general cost rule. [ 12 ] Canada argues that it was reasonable to delay bringing the stay application until

summary judgment was granted against Canada in the class actions, as this is when Canada knew there would be individual issue trials in the class actions overlapping the damages in this action. [ 13 ] Regardless of whether Canada’s delay in bringing the stay application was reasonable, the delay did not impact the costs of the stay application or the appeal. There is no suggestion that an earlier application could have avoided or reduced the costs of the stay application or the appeal.

There is also no evidence that Canada’s timing in bringing the stay application was in bad faith or for an ulterior purpose. [ 14 ] Regarding the Plaintiffs’ argument that it was the Plaintiffs’ proactive conduct that moved the stay appeal forward following the cancellation of the hearing due to Covid-19, the information provided in the written submissions does not persuade me that it was the Plaintiffs’ conduct alone that led to moving the stay appeal forward. In addition, I am not persuaded that the Plaintiffs’ pro-active conduct involved any costs beyond writing a letter to the Court. [ 15 ] In

summary, the conduct of the parties may justify departing from the general cost rule where a party’s conduct unnecessarily increases the costs of an application or a party engages in misconduct. I find that Canada did not engage in misconduct and Canada’s delay did not increase the cost of the stay application or the appeal. [ 16 ] Another factor I may consider under r 10.33(1)(

g) is the novelty of the issue determined in the stay appeal. Canada argues that a stay of an individual action in the context of class action proceedings is not novel. I disagree. The lack of jurisprudence in Alberta and throughout Canada regarding the appropriate test and factors to consider in determining whether to stay an individual action in the face of class actions speaks to the novelty of the issue. The proper test and factors to consider is not settled in the jurisprudence. There was

merit to both parties’ positions. Resolution of this issue will provide guidance in the future about when an individual can maintain their own individual action where there are live overlapping class proceedings. [ 17 ] In

summary, I find the novelty of the issue and the guidance it will provide in future cases justifies a ruling that each party bear their own costs. Heard on the 6th day of November, 2020. Dated at the City of Edmonton, Alberta this 1 st day of March, 2021. Susan L. Bercov J.C.Q.B.A. Appearances: Avnish Nanda Avnish Nanda Professional Corporation for the Respondents Amy Martin-LeBlanc and James Elford Department of Justice Canada for the Appellant