Understanding Elevated Costs in Alberta Litigation: Key Takeaways from a Recent Decision
Litigation doesn’t end with the outcome of a case. The issue of costs can significantly impact the overall result.
In a recent Alberta Court decision, the head of our litigation team, Sandeep K. Dhir, K.C., was successful in securing a substantial elevated costs award for our client following the dismissal of an action for delay. This decision provides valuable insight into how courts assess litigation conduct, proportionality, and the evidence required to justify costs beyond the standard tariff.
What Are Elevated Costs?
In Alberta, the general rule is that the successful party is entitled to costs. These are often determined under Schedule C of the Alberta Rules of Court, which sets out a baseline tariff.
However, in certain circumstances, the Court may award elevated (enhanced) costs, which go beyond the standard tariff. These awards are discretionary and typically reflect factors such as:
Litigation conduct
Complexity of the matter
Proportionality
The reasonableness of the parties’ actions
Elevated costs can significantly increase the amount recoverable, making litigation strategy and conduct critical.
Overview of the Decision
In this case, the Court dismissed the action on the ground of long delay and awarded costs in favour of the successful party. While the matter did not proceed to a decision on the merits, the Court carefully analyzed:
The procedural history
The intensity and complexity of the litigation
The conduct of the parties throughout the proceeding
The Court ultimately awarded $120,000 in costs, representing approximately 40–50% of the successful party’s legal fees, plus disbursements and GST.
Key Factors the Court Considered
1. Litigation Conduct
The Court emphasized that conduct throughout the proceeding matters, not just the outcome.
In this case:
The action was pursued urgently and involved extensive early litigation
Significant steps were taken, including affidavits and 11 days of questioning
The action was later abandoned, contributing to delay and wasted resources
The Court found this conduct supported an enhanced costs award.
2. Complexity and Intensity of the Litigation
The matter involved:
Multiple parties
Overlapping related proceedings
Extensive evidence and procedural steps
The Court noted that the litigation required concentrated effort over a short period, justifying a departure from standard tariff costs.
3. Proportionality
A key principle in costs awards is proportionality, not simply what was spent, but what is reasonable for the opposing party to pay.
Here, the Court acknowledged that:
Actual legal fees exceeded $250,000
Schedule C alone would not adequately reflect the nature of the litigation
As a result, a partial indemnity approach was applied.
4. Abandonment of the Action
One of the most significant factors was that, after extensive litigation, the action was not pursued to completion.
The Court found that:
The matter was advanced on an urgent basis
Considerable resources were expended
The failure to follow through contributed to unnecessary cost and delay
This played a central role in justifying elevated costs.
What Evidence Is Needed for Elevated Costs?
This decision highlights the importance of strong, well-documented evidence when seeking elevated costs.
Successful claims often include:
Detailed billing records and time entries
Evidence of litigation complexity
Documentation of opposing party conduct
A clear procedural history showing delay, inefficiency, or misconduct
Strategic correspondence (e.g., warnings regarding costs exposure)
Courts require a clear foundation to move beyond standard tariff costs.
Key Takeaways for Businesses and Litigants
This decision reinforces several important points:
Litigation strategy matters; how a case is conducted can impact cost recovery
Delay and abandonment carry consequences
Elevated costs are achievable, but require strong evidence and justification
Schedule C is not always determinative; courts will depart from it where appropriate
For businesses, this means that litigation risk is not limited to the claim itself. Cost exposure can be significant depending on how the matter unfolds.
How the SB LLP Litigation Team in Edmonton Can Help
At SB LLP, our litigation team takes a strategic approach to both advancing claims and managing risk, including cost recovery.
Whether you are:
Pursuing a claim
Defending litigation
Seeking to recover legal costs
Assessing your exposure
We provide practical, results-driven advice at every stage. Elevated costs awards remain discretionary, but this decision demonstrates that Alberta courts are prepared to award them where justified.
The key is preparation, strategy, and evidence.
If you are involved in litigation or want to better understand how costs may impact your case, our team at SB LLP is here to help.
