RVB Managements Ltd. v. Rocky Mountain
House, 2015 ABCA 304, per Paperny, Watson, Slatter
I. FACTS AND ISSUES
This was a $25 million tort claim against a municipality. It
culminated in a long, 27-day trial over two years. The Plaintiffs
ended up getting nothing. They appealed and lost. The parties could
not agree on costs. The trial judge made a costs award that 1)
adjusted the costs for inflation and 2) used a column multiplier,
since the amount at issue was several times the $1.5 million Column
II. HELD: Inflation adjustments and column multipliers are
(a) The current amounts were enacted
in 1998 and haven't been changed. Some trial judges have
allowed indexing for inflation; some haven't. There has been no
direct appellate ruling on the issue.
(b) The Plaintiffs made three
arguments. First, they contended the fact the 2010 Rules didn't
update the 1998 amounts means they implicitly "confirmed"
them. The Court rejected that. They noted the Alberta Law Reform
Institute specifically said that the amounts in Schedule C were
"beyond the scope of the Rules of Court Project". The
Court also observed that the Interpretation Act
"displaces any assumption that the repeal and substitution of
an enactment was intended to either confirm or change the prior
law". In fact, at the time of the re-enactment in 2010, many
judges were already adjusting for inflation. The "re-enactment
should," the Court found, "be interpreted on the
assumption that, where appropriate, that practice could
(c) The Plaintiffs then cited a
number of cases which had declined to adjust for inflation. The
Court of Appeal noted some of these merely upheld, without
discussion, costs awards which hadn't been adjusted. In other
words, the Court of Appeal didn't interfere with the trial
court's discretion, but didn't rule on the merits of
adjusting at all. (E.g. Chisholm v.
Lindsay, 2015 ABCA 179).
(d) Finally, the Plaintiffs argued
inflation has to be proven in each case by expert evidence. The
Court said the basic fact of inflation—that "the cost of
living varies over time," was "sufficiently notorious
that notice can be taken of it", but agreed that "the
exact amount of inflation is something upon which evidence should
ordinarily be presented." They noted the Bank of Canada
inflation calculator says the average increase in cost of living
since 1998 is 39%. "While more exact evidence would have been
desirable, the award of 25% for inflation does not demonstrate any
miscarriage of justice."
2. Column Multipliers
(a) This was a $25 million claim. The
current Schedule C Column 5 maxes out at $1.5 million. The proposed
amended column from the Rules of Court Committee is up to $2
million. The trial court here doubled the column since the claimed
amount was 10x the column maximum.
(b) The Court of Appeal said this was
permissible, since R. 10.31(3)(b) specifically authorizes the trial
judge to award "a multiple, proportion or fraction of an
amount set out in any column of the tariff". Rule 10.33 lists
the criteria to be considered, and includes in R. 10.33(1)(b)
"the amount claimed and the amount recovered". They noted
it is common to award multiples for various reasons and essentially
endorsed that practice.
1. It is a bit surprising the Court
failed to mention the Rules of Court Committee, which found in
January a "broad consensus that the Schedule needs to be
updated to reflect inflation, and the Committee will be
recommending approximately a 35% increase in the assessable amounts
and the different columns."
2. In light of the Rules of Court
memorandum and this Court of Appeal decision, it is likely
inflation will be claimed and awarded much more often.
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