Background

In 2021, Barbara Fodor engaged Concrete Experts Ltd to replace her garage pad and driveway. Shortly after completion, she observed significant cracking and heaving in the work. Following unsuccessful discussions with the company, Fodor initiated a civil claim in the Alberta Court of Justice, seeking damages of $21,165 plus interest and costs. At trial before Justice Burt, Concrete Experts Ltd was found liable for breach of contract, and Fodor was awarded $13,000 in damages, pre-trial interest, $1,300 in legal fees, and $2,063 in disbursements. Dissatisfied with the trial decision, Concrete Experts Ltd appealed and lost. At issue was costs of the appeal.

Court’s Analysis

Argued on November 29, 2024, the appeal was dismissed by Justice R.A. Neufeld. In his ruling, Justice Neufeld underscored the discretionary nature of costs awards, emphasizing that such awards are designed to partially indemnify the successful party for litigation expenses while promoting cost-effective and expeditious appellate proceedings. The court noted:

[8] As a general principle, costs are in the discretion of the court-both at trial and on appeal. Party and party costs are intended to partially indemnify a successful party for the expenses of litigation. Costs entitlement and reasonableness are dealt with in rule 10.32 and 10.2 and it is open to the court to make an award based on Schedule 2 or by other mechanisms such as a lump sum award or, where appropriate an award based on a proportion of reasonable legal fees following assessment by the court or an assessment officer.

[9] In determining costs for appeals from decisions made by the Court of Justice, it is important to recognize that such proceedings are intended to be cost effective and expeditious. This is important to the delivery of access to justice.

The decision acknowledged that both parties were represented by counsel at trial and on appeal, with the preparation of written briefs deemed essential to effective representation. Although Fodor sought enhanced costs for additional trial expenses, Concrete Experts Ltd contested these enhancements. Ultimately, the court found that a lump-sum award of $3,000 for the appeal—comprising disbursements and interest—was appropriate in light of Ms. Fodor’s success at both trial and on appeal.

Takeaways

This decision reinforces the principle that appellate proceedings should remain both cost effective and expeditious, thereby enhancing access to justice. The modest lump-sum costs award of $3,000 demonstrates the court’s measured approach in balancing the need to compensate the prevailing party against the overarching objective of avoiding prohibitive litigation expenses.

For legal practitioners and insurance professionals alike, Fodor highlights the critical importance of meticulous counsel representation and well-prepared written submissions at both trial and appellate stages. Moreover, the case serves as a reminder that while basic costs may be recoverable, the court remains cautious in awarding enhanced costs absent compelling justification, which may encourage parties to resolve disputes at an earlier stage.

Conclusion

Fodor stands as a pertinent example of how the Court of King’s Bench of Alberta approaches cost awards on appeals of decisions from the Court of Justice. The decision reflects a judicious balancing act: ensuring that successful parties receive reasonable compensation for litigation efforts, while simultaneously fostering an efficient and accessible appellate system. This refined approach not only supports prudent legal practice but also reinforces the broader policy objectives underlying the cost awards regime.

If you are evaluating the merits of an appeal - whether in a coverage dispute, subrogation matter, or liability claim - and require guidance on potential legal cost implications, please contact Mohit Malhotra in Calgary, Christine Pratt in Edmonton or any member of Field Law’s Litigation Group. 
 

Link to decision: Fodor v Concrete Experts Ltd, 2025 ABKB 151