Executive Summary: Key Legal and Evidentiary Issues

• Liability was based on evidence of driveway cracking and heaving shortly after the work was completed.

• Trial judgment awarded partial damages for breach of contract, not the full amount claimed.

• Appeal was dismissed; no error found in the trial decision regarding liability or damages.

• Dispute arose over costs, with arguments centered on whether written briefs warranted additional recovery.

• Court considered discretionary principles and the proportionality of litigation costs in access to justice.

• A lump sum of $3,000 was awarded for appeal costs due to overall success and necessity of legal representation.

Facts and procedural history

In 2021, Barbara Fodor engaged Concrete Experts Ltd. to replace her garage pad and driveway. The work was carried out during the summer of that year. Shortly after completion, Ms. Fodor observed significant cracking and heaving in the concrete. Attempts to resolve the matter directly with the company were unsuccessful, leading her to file a civil claim in the Alberta Court of Justice.

Ms. Fodor sought damages of $21,165, plus interest and costs. The matter proceeded to trial, where the Honourable Justice Burt found in a written decision dated March 21, 2024, that Concrete Experts Ltd. was liable for breach of contract. Damages were awarded in the amount of $13,000, along with $1,300 in fees and $2,063 in disbursements.

The appeal and subsequent costs decision

Concrete Experts Ltd. appealed the trial decision to the Court of King’s Bench of Alberta. The appeal was heard on November 29, 2024, by the Honourable Justice R.A. Neufeld and was dismissed, with reasons delivered from the bench. After the appeal, the parties were unable to agree on costs, prompting Ms. Fodor to file a cost application on January 6, 2025.

Ms. Fodor sought $7,750 in costs for the appeal and additional trial-related costs under section 53(1)(c) of the Court of Justice Act. She cited items 7(1) and 8(1)(a) of Schedule C as applicable and requested double costs due to a June 26, 2024 settlement offer in which she proposed to waive costs if the appeal was abandoned.

Concrete Experts Ltd. conceded entitlement under Schedule C Column 1 for appeal costs but disputed any enhancement. They argued item 8(1)(a), concerning written briefs, did not apply because such briefs are not required in appeals from the Alberta Court of Justice. Even if applicable, they maintained it should not be cumulative with item 7(1).

Policy considerations and court's reasoning

Justice Neufeld emphasized that cost awards are discretionary under Rules 10.2 and 10.32 of the Alberta Rules of Court. These awards are designed to partially indemnify successful parties and may be based on Schedule C, a lump sum, or a proportion of assessed legal fees. The court also considered the objective of ensuring access to justice by maintaining a cost-effective and efficient appeal process.

Despite written briefs not being strictly required, the judge noted that both parties reasonably needed counsel and supporting documents to effectively present their arguments. The appellant’s motivations included potential broader implications for its business practices and contract standards, which justified the use of legal representation and a written brief.

Given the respondent's complete success at both trial and on appeal, the court awarded a lump sum of $3,000 for the appeal, inclusive of disbursements and interest. This amount reflected the complexity of the case and the value of legal services while adhering to principles of proportionality and fairness.

Outcome

Ms. Fodor was ultimately awarded $13,000 in damages and $3,000 in appeal costs, reinforcing the trial finding of contractual breach. Concrete Experts Ltd. remained liable, and the court declined to disturb the lower court’s decision. The result underscores judicial discretion in cost determinations and the practical need for representation, even in streamlined appeal settings.