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 the Act.
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 costs.
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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