On January 26th, 2018, the Alberta Court of Appeal issued Liquor Stores Limited Partnership v Edmonton (City), 2018 ABCA 34.
That case considered costs in an appeal of a decision by Edmonton’s Subdivision and Development Appeal Board (SDAB). This type of appeal is a two-step process: first permission to appeal must be granted, and then the appeal itself is heard. In this case, permission to appeal had been granted but the appeal was ultimately unsuccessful.
The Court awarded costs for both the permission application and the appeal itself. The general rule is that the winner of an application is awarded costs. This case was different, because the respondent was unsuccessful in the permission application but still was awarded costs for it. The Court did this based on the finding that the permission application is a key step in the appeal process.
The Court also awarded costs based on Column 2 rates. Usually, in this type of appeal, the lower Column 1 rates are used. The Court strayed from this because the appeal involved important issues (who operates liquor stores in Edmonton and the surrounding area). The respondent argued that there should also be higher costs because of delays in the appeal process. The Court did not reject such an argument in principle, but did not base its decision to award higher costs in this case because there was no evidence of undue delays.
What does this mean for those involved in challenges to SDAB decisions?
1. Success in a permission to appeal application doesn’t protect an appellant from having costs awarded against him or her for that application. Also, the Court is willing to award higher cost rates than the minimum in the right circumstances. This is one more factor to take into account when weighing the risks and benefits of appealing a SDAB’s decision.
2. While it didn’t do so in this case, the Court has expressed willingness to award higher levels of costs in cases marked by delay. An appellant should be careful to move the appeal forward with reasonable speed, taking into consideration the timelines set out in the Rules of Court.
The full text of the Alberta Court of Appeal’s decision is available on CanLII.org.