Legare v Acme (Village), 2023 ABKB 278

Court of King’s Bench of Alberta Citation: Legare v Acme (Village), 2023 ABKB 278 Date: 20230508 Docket: 2201 04392 Registry: Calgary Between: The Village of Acme Appellant - and - Trevor Legare and Katelyn Legare Respondents _______________________________________________________ Reasons for Decision of the Honourable Justice Colin C.J. Feasby _______________________________________________________ Introduction [ 1 ] On March 10, 2023, I decided an appeal in this matter in favour of the Legares. The parties have now asked me to settle the costs for both the trial and appeal of this matter.

This decision settles all the costs of this matter as it would cause further expense to the parties and be a poor use of Court resources to return the matter to the trial judge to assess the costs of the trial. [ 2 ] The key issue raised by this costs application is whether the 40-50% guideline for costs recovery set out by the Court of Appeal in McAllister v Calgary (City) , 2021 ABCA 25 applies to costs in the Alberta Court of Justice. The Parties’ Positions Legares [ 3 ] The Legares’ actual costs are $62,665.63 in legal fees and $8,478.66 (before GST) in disbursements.

This is not a surprising amount for a three-day trial with an expert witness and written submissions, an appeal with written submissions, and written costs submissions. [ 4 ] The Legares submit that their costs calculated using the Tariff set out in Practice Note 2, Costs in [Alberta Court of Justice] Civil for the trial and

Schedule C to the Rules of Court for the appeal are grossly inadequate for the present matter and that the Court should exercise its discretion to award a higher amount. [ 5 ] The Legares seek 50% of their actual costs plus disbursements for both the trial and appeal pursuant to McAllister .

Village of Acme [ 6 ] The Village of Acme submits that the appropriate measure of costs is $6,360 for the trial calculated in accordance with Practice Note 2 and $3,375 for the appeal calculated in accordance with

Schedule C to the Rules of Court . [ 7 ] The Village of Acme disputes the Legares’ claim for a disbursement of $3,900 for their expert witness saying that it is excessive. Analysis [ 8 ] Costs are discretionary. Practice Note 2 states that “Costs recoverable by a party in Provincial Court are always completely in the discretion of the Presiding Judge” and that the amounts in the Tariff are to be interpreted as a “guide to costs.” [ 9 ] The principle in McAllister that costs are to indemnify a party for 40-50% of actual costs is not a hard and fast rule. Again, the Court has discretion: McAllister at para 17 . [ 10 ] The structure of

Schedule C to the Rules of Court reflects the idea that matters with more money in issue are typically more complex and that the costs incurred will be correspondingly higher for high value cases. The general relationship between complexity and value does not always hold in individual cases. [ 11 ] The present case is one where the relationship between complexity and value does not hold. Despite its relatively low value, this matter took three days to try, featured an expert witness, and raised an unsettled question of statutory

interpretation. As noted earlier, the actual costs incurred for the trial are within the range of what would be expected for a three-day trial with an expert witness and robust written submissions. [ 12 ] I agree with the Legares that costs calculated by the Village of Acme according to Practice Note 2 and

Schedule C are inadequate in the present case. At the same time, however, I agree with the Village of Acme that the 50% of actual costs sought by the Legares is disproportionate relative to the value of the case. [ 13 ] Civil litigation in the Alberta Court of Justice is supposed to be simpler and less expensive than in the Court of King’s Bench.

The simplified procedure in the Alberta Court of Justice exists to facilitate access to justice so that the public can have lower value disputes settled fairly and economically. [ 14 ] Justice Corbett concluded in Abdulhak v Fairmont Hotels Inc , 2021 ABPC 153 at paras 40-46 that the Alberta Court of Justice’s statutory mandate to provide “expeditious and inexpensive” dispute resolution was inconsistent with the 40-50% indemnity provided for in McAllister .

See also, Bourne v Calgary (City) , 2021 ABPC 319 where Justice Higa declined to follow McAllister . [ 15 ] The procedural rules in the Alberta Court of Justice are intended to keep costs down by among other things, not providing for the same kind of pre-trial discovery as the Rules of Court allow for in the Court of King’s Bench.

However, the Court of Appeal’s 40- 50% guideline in McAllister implicitly assumes litigation conducted according to the rules that prevail in the Court of King’s Bench. [ 16 ] The Court of Appeal in McAllister at para 41 cited many cases to support its view that 40-50% was the appropriate indemnity. All the cases were from the Court of King’s Bench or Court of Appeal. No cases from the Alberta Court of Justice were cited. The Court of Appeal in McAllister at para 43 drew support for its conclusion that 40-50% was the appropriate indemnity from the findings of the committee tasked with studying

Schedule C to the Rules of Court which concerns costs in the Court of King’s Bench. [ 17 ] Based on a fair reading of McAllister, the Court of Appeal cannot be said to have set down an appropriate percentage for recovery of costs in civil litigation in the Alberta Court of Justice.

Given the Alberta Court of Justice’s statutory mandate to provide expeditious and inexpensive dispute resolution, I agree with Justices Corbett and Higa that a 40-50% guideline for costs recovery is not appropriate for cases in the Alberta Court of Justice. [ 18 ] Justice Higa in Bourne at para 9 observed that “[t]he general level of indemnity of the Provincial Court’s Tariff of Recoverable Fees is 5% for unrepresented litigants and 10% for litigants who have retained counsel.” While I defer to the Alberta Court of Justice as to whether this level of indemnity is generally appropriate, it is not appropriate in the present case.

The present case was complex, there was expert evidence, the case raised an unsettled question of statutory

interpretation, and both parties were represented by counsel. Conclusion [ 19 ] For a case like the present one, I conclude that the appropriate indemnity is in the range of 20-25% of actual costs or half that provided for in McAllister . I award 25% of actual costs – the high end of the range – to the Legares because their costs also include the costs of the appeal in the Court of King’s Bench which should be calculated according to the principles applicable to litigation in the Court of King’s Bench including McAllister .

I also find the disbursements sought by the Legares, including the cost of the expert witness, to be reasonable and fully recoverable from the Village of Acme. Heard on the 10 th day of March, 2023. Dated at the City of Calgary, Alberta this 08 th day of May, 2023.

Colin C.J. Feasby J.C.K.B.A. Appearances: Michael J. Geib & Gregory W. Jaycock, Parlee McLaws LLP for the Appellant Nicholas Lo, McLeod Law LLP for the Respondents