On February 7, the Alberta Court of Queen's Bench released
the first reported decision on a party's entitlement to costs
under section 36 of the Competition Act (Act), which
confers a private right of action for any person who has suffered
loss or damage as a result of a breach of a criminal provisions of
Further to the Court's decision to award damages to a
company that had lost a business opportunity as a result of a
breach of the conspiracy provision of the Act, the plaintiff sought
costs, including solicitor-client and investigation costs, under
section 36 of the Act.
With respect to the claim for solicitor-client's costs, the
plaintiff argued that the wording of section 36 supported an award
for such costs. Section 36 of the Act provides that any person who
has suffered loss or damage as a result of a breach of a criminal
provision of the Act may sue to recover damages, together with
"the full cost to him of any investigation in connection with
the matter and of proceedings under this section." As such,
the plaintiff submitted that the words "full cost" of
proceedings should be interpreted as referring to solicitor-client
In deciding whether the plaintiff was entitled to recover such
costs, the Court held that the term "full cost" is not
synonymous with solicitor-client costs and that if Parliament had
intended this meaning, it could have stated so expressly in section
36 of the Act. Therefore, the Court relied on the common law
principle that solicitor-client costs can only be awarded in
instances where litigation misconduct occurred. Since no such
misconduct was alleged in this case, the Court concluded that the
plaintiff was entitled to recover party and party costs only.
As for the claim for investigation costs, the Court further
clarified existing principles as to when such costs can be awarded
under section 36 of the Act. Reviewing the relevant factors set out
by the courts when assessing a claim for investigation costs, the
Court re-emphasized that such a claim must be supported by
evidence, and noted that the plaintiff's personal time and
expense as a private litigant is not compensable. Applying these
principles, and noting that the plaintiff had failed to provide
sufficient and particularized evidence necessary to claim
investigation costs under section 36 of the Act, the Court rejected
the claim of approximately $1 million and awarded investigation
costs in the amount of $75 000, including disbursements.
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