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CIVIL PROCEDURE - Costs - Complex, novel or test case

Monday, April 19, 2021 @ 9:22 AM  

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Appeal by the defendants in a class action from a trial decision awarding them no costs after the action was dismissed after a six-week trial. The class action was launched on behalf of long-term care facility residents, primarily elderly and disabled Albertans, who paid accommodation charges to those facilities following an increase in the accommodation charges in 2003. The action alleged that the 2003 increase was not authorized by the applicable Alberta legislation and was unlawful, and that the residents had been subject to discriminatory treatment. The trial judge found the action was brought on behalf of disadvantaged members of society. She held the action was meritorious, in the public interest, involved a Charter challenge, and raised a novel point of law, and access to justice required a trial. She found the costs claimed by the appellants were out of proportion and, if granted, would have a chilling effect on future class actions.

HELD: Appeal dismissed. The trial judge’s conclusions that the beneficiaries of the action were disadvantaged and that the action was brought in the public interest were reasonable and disclosed no palpable and overriding error. Complexity and difficulty were relevant considerations when determining whether a novel question of law was raised. The trial judge’s characterization of the statutory interpretation issue as a difficult question of law, and the application of principles of statutory interpretation in the legislative and factual matrix of this case as novel was a reasonable assessment of the issues at trial, and the trial judge was well-positioned to make that assessment. The trial judge properly viewed the members of the class as constituting a disadvantaged group, as they were disabled and elderly people of such medical frailty that they were essentially forced to reside in nursing homes.

Elder Advocates of Alberta Society v. Alberta Health Services, [2021] A.J. No. 245, Alberta Court of Appeal, B.K. O'Ferrall, F.L. Schutz and J. Strekaf JJ.A., February 22, 2021. Digest No. TLD-April192021002