410675 Alberta Ltd. v. Trail South Development Inc., (2011) 520 A.R. 288 (QB)

• Judge: Smith, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 14, 2011
• Citations: (2011), 520 A.R. 288 (QB);2011 ABQB 706

410675 Alta. Ltd. v. Trail South Dev. Inc. (2011), 520 A.R. 288 (QB)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. NO.130

B & R Development Corporation Ltd., operating under the trade name of Abbey Lane Homes (plaintiff) v. Trail South Developments Inc. (defendant)

(0203 07239)

410675 Alberta Ltd. (plaintiff) v. Trail South Development Inc. (defendant)

(0003 10282; 2011 ABQB 706)

Indexed As: 410675 Alberta Ltd. v. Trail South Development Inc.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Smith, J.

November 18, 2011.

Summary:

Two plaintiffs (410675 Alberta Ltd. and B & R Development Corp.) brought separate actions against the defendant, with respect to the alleged breach by the defendant of a purchase and sale agreement.

The Alberta Court of Queen's Bench, in a decision reported at 508 A.R. 208, dismissed the actions. The parties agreed that the costs ought to be party-party costs including the amount for second counsel, that Column 5 of Schedule C of the Alberta Rules of Court was the appropriate column to be applied and that doubling after the date of a formal offer was appropriate. The parties departed on the question of whether the column amount ought to be multiplied, on whether there ought to be enhanced costs for written argument, on which party ought to be entitled to costs of an interim appeal, and whether there should be a set off for the failure by the defendant to prove a failure to mitigate.

The Alberta Court of Queen's Bench held that a fair award of costs was a single set under Column 5, with the written final argument assessed at $15,000 instead of $5,000, with doubling after the relevant date.

Practice - Topic 7110.2

Costs - Party and party costs - Special orders - Increase in scale of costs - Written argument and rebuttal - Two plaintiffs (410675 Alberta Ltd. and B & R Development Corp.) brought separate actions against the defendant, with respect to the alleged breach by the defendant of a purchase and sale agreement - The trial judge dismissed the actions - With respect to costs, the parties departed on the question of whether the column amount ought to be multiplied, on whether there ought to be enhanced costs for written argument, on which party ought to be entitled to costs of an interim appeal, and whether there should be a set off for the failure by the defendant to prove a failure to mitigate - The Alberta Court of Queen's Bench held that a fair award of costs was a single set under Column 5 of Schedule C of the Alberta Rules of Court, with the written final argument assessed at $15,000 instead of $5,000, with doubling after the relevant date - The tariff amount of $5,000 for the brief of written final argument was too low given its usefulness - There would be no adjustment to the tariff amount for the opening brief - Its purpose was limited and the tariff amount was adequate compensation - The appeal was procedural and ultimately failed - The plaintiffs had the right to seek to amend to ensure a fair trial on any law which could be applied to the merits - The troublesome aspect of the application to amend was its timing - Despite being paid appropriately for the costs related to the adjournment of the trial, the defendant unsuccessfully opposed the amendment - An appropriate resolution for these costs was to deprive the plaintiffs of the costs they would otherwise be entitled to receive - The defendant proved mitigation - Finally, the court was not inclined to grant a multiple based upon inflation alone in the absence of evidence on whether the tariff was now failing to meet its objectives - Similarly, the quantum of the claim ought not to justify a multiple in these circumstances - There was no basis on which to depart from the usual party-party award under Column 5.

Practice - Topic 7118.1

Costs - Party and party costs - Special orders - Multiplier - [See Practice - Topic 7110.2 ].

Practice - Topic 7121

Costs - Party and party costs - Special orders - Set-off - [See Practice - Topic 7110.2 ].

Practice - Topic 8333.1

Costs - Appeals - Costs of appeal - Interlocutory appeals - [See Practice - Topic 7110.2 ].

Cases Noticed:

Pharand Ski Corp. v. Alberta (1991), 122 A.R. 395 (Q.B.), refd to. [para. 4].

Dallin v. Montgomery et al. (2010), 498 A.R. 287; 2010 ABQB 587, refd to. [para. 5].

Eaton et al. v. HMS Financial Inc. et al. (2010), 486 A.R. 130; 2010 ABQB 364, refd to. [para. 6].

Miller (Ed) Sales & Rentals Ltd. v. Caterpillar Tractor Co. et al. (1996), 187 A.R. 81; 127 W.A.C. 81; 41 Alta. L.R.(3d) 217, additional reasons (1998), 175 A.R. 304; 216 W.A.C. 304; 61 Alta. L.R.(3d) 256 (C.A.), refd to. [para. 6].

Sagacity Professional Corp. v. Buchanan Barry LLP et al., [2011] A.R. Uned. 19; 2011 ABQB 58, refd to. [para. 7].

Manufacturers Life Insurance Co. v. Laverdiere (2011), 528 A.R. 99; 2011 ABQB 733, refd to. [para. 7].

Smith v. Buller (1875), L.R. 19 Eq. 473, refd to. [para. 8].

Counsel:

David T. Parkatti and Harvey Hait (Cleall Barristers & Solicitors), for the plaintiff;

Scott J. Hammel (Miller Thomson LLP), for the defendant.

This matter was heard on November 14, 2011, by Smith, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on costs on November 18, 2011.