Can the Other Side Be Ordered to Pay My Legal Costs in Alberta?

When a family dispute ends up in court, legal bills climb quickly. It is natural to ask whether the person who lost, or who made things harder than they needed to be, can be made to pay some of what you spent.

In Alberta the answer is sometimes yes, but it is not automatic and it is rarely a full refund. This article explains the basic rules in the Alberta Rules of Court, what a judge weighs, and how to prepare.

This article covers the law of Alberta.

The basic rule: success usually matters

Under the Alberta Rules of Court, a successful party to an application, a proceeding or an action is entitled to a costs award against the unsuccessful party, and the unsuccessful party must pay it promptly, even before the whole matter is finally decided.

That entitlement has limits. It is subject to the Court's general discretion over costs, the assessment officer's discretion, any specific rule or law about who pays, and the rule on without-notice matters. In practice, costs in family cases are discretionary rather than automatic.

These Rules apply whether you have a lawyer or are representing yourself.

When can a costs award be made?

Unless the Court orders otherwise or the rules provide otherwise, a costs award can be made in three common situations:

• For an application or proceeding a party had notice of, once it is decided.
• As part of a settlement where one party agrees to pay costs without the amount being fixed.
• For trials and other matters in an action, after judgment or a final order is entered.

If an application is heard without notice to the other side, such as an urgent application, the Court may make a costs award right away or wait until every party has been told the date, time and place for that decision. If no costs award or assessment order is made when the matter is decided, either party may ask an assessment officer for an assessment appointment date.

What the judge considers and how much can be ordered

The Court can order one party to pay the other the reasonable and proper costs incurred, or any amount the Court considers appropriate. That can include an indemnity for a party's lawyer's charges or a lump sum instead of, or in addition to, assessed costs.

A judge may weigh the following factors:

• The result and each party's degree of success.
• The amount claimed compared with the amount recovered.
• The importance of the issues and the complexity of the action.
• Conduct that shortened or lengthened the action.

Awards can take different shapes. They can cover all or part of the costs, with or without reference to the Schedule C tariff. They can be a multiple, proportion or fraction of a Schedule C amount, costs on one issue or application, or a percentage of assessed costs. Because of this flexibility, there is no single figure that applies to everyone. What you recover depends on the order made in your case.

Conduct, offers and things that can change the outcome

In deciding whether to impose, deny or vary a costs award, the Court may consider unnecessary conduct that delayed or lengthened the action, refusing to admit what should have been admitted, unnecessary or improper steps, errors in documents, breaking the rules or an order, and misconduct. It may also consider any settlement offer.

Some costs are excluded unless the Court orders otherwise, including the costs of certain dispute resolution processes (unless there was serious misconduct) and expert fees for investigations or for assisting at a trial or streamlined trial.

If both sides are owed costs, the Court may net the amounts by deduction or set-off. If a lawyer engages in serious misconduct, the Court may order the lawyer rather than the client to pay.

Representing yourself changes things too. A self-represented person is not automatically entitled to fee costs, though the Court may in appropriate circumstances order a payment equal to all or part of the Schedule C fees.

What to do next

If you want costs, plan for it from the start and keep your records in order. A party entitled to costs who wants or needs them assessed prepares a bill of costs in Form 44, listing fees, disbursements and other charges, signed by the person who prepared it.

• Keep every invoice, receipt and expense record for your case.
• Keep copies of any settlement offers you made or received, and note the dates.
• Ask the Court for costs when your application or trial is decided, rather than leaving it for later.
• If costs were not dealt with, find out how to ask for an assessment appointment.
• Talk to a lawyer about how a costs claim or a costs risk fits your situation.

Frequently asked questions