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Court Issues Ruling On Costs In Elder Society Class Action

Back in October we posted a story about a class-action lawsuit filed on behalf of people living in long-term care facilities in Alberta. In 2003, changes to the law were made to allow facilities to apply “accommodation charges” to people living in their facilities. The suit was led by the non-profit group The Elder Advocates of Alberta Society.

The decision at appeal

The plaintiffs argued that the increased charges were not limited to accommodation and meals, which are the categories under which facilities were able to apply higher charges to. The plaintiffs took the position that the charges went above and beyond what the costs of accommodation and meals. The case made its way to the Alberta Court of Appeal, where the court agreed with the trial judge’s decision that,

“… there is no statutory requirement that the accommodation charge have a reasonable nexus to the cost of accommodation and meals. Again, this is not to say that the Alberta government and the Minister are prohibited from implementing a scheme that attempts to create a ‘reasonable’ accommodation charge that is generally related to the actual cost of nursing home and auxiliary hospital accommodation and meals. My conclusion is that there is simply no statutory obligation to do so.”

In pursuit of costs

The government of Alberta, being successful at appeal, attempted to recover costs from the plaintiffs. The Alberta Court of Queen’s Bench recently issued a decision on this matter.

Alberta’s Rules of Court address how costs should be awarded in class action lawsuits. Section 10.32 of the Rules state,

In a proceeding under the Class Proceedings Act or in a representative action, the Court, in determining whether a costs award should be made against the unsuccessful representative party, may take into account one or more of the following factors, in addition to any other factors the Court considers appropriate:

(a)    the public interest;

(b)    whether the action involved a novel point of law;

(c)    whether the proceeding or action was a test case;

(d)    access to justice considerations.

After applying those factors to this case, the court determined the factors favour the plaintiffs, writing,

This decision means that while not successful in stopping the application of new daily charges in long-term care facilities, the plaintiffs would not be on the hook for costs.

The Advocacy Team at HMC Lawyers has over 130 years of combined experience advising clients and litigating on their behalf. Our lawyers know that strategic action at an early stage can help settle matters early and expeditiously, and help prevent prolonged and expensive litigation. We work closely with clients to help them make good business decisions when facing a legal dispute.

To make an appointment with one of our lawyers about a commercial or business litigation matter, contact us online or call 1-800-480-3534.

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