741431 Alberta Ltd. v. Devon (Town), 2003 ABQB 377

• Judge: Watson, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 28, 2003
• Citations: 2003 ABQB 377;(2003), 338 A.R. 134 (QB)

741431 Alta. Ltd. v. Devon (2003), 338 A.R. 134 (QB)

MLB headnote and full text

Temp. Cite: [2003] A.R. TBEd. MY.138

741431 Alberta Ltd. (applicant/plaintiff) v. The Town of Devon (respondent/defendant)

(Action No. 0003 15574; 2003 ABQB 377)

Indexed As: 741431 Alberta Ltd. v. Devon (Town)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Watson, J.

April 29, 2003.

Summary:

A town sold land to 741431 Alberta Ltd. The sale agreement set a deadline for construction to the "roof stage" or the town could repurchase the land at the purchase price. The town later extended the roof stage deadline. That deadline was not met. The town sought to repurchase the land. 741431 failed to execute a transfer. The town commenced an action. The action was settled by 741431 endorsing a consent judgment in the town's favour and providing a transfer of the property and the town agreeing not to use the consent judgment and transfer unless 741431 failed to reach the roof stage by a specified date. There was no construction by that date. 741431 applied for an order restraining the town from entering the consent judgment and registering the land transfer.

The Alberta Court of Queen's Bench, in a decision reported at 324 A.R. 201, dismissed the application. The town brought an application seeking solicitor and own client costs in relation to 741431's application. The town relied on the terms of the consent judgment, which referred to legal costs on a solicitor and own client basis being deductible from the price paid by the town to repurchase the land. 741431 argued that the terms of the consent judgment applied only to costs up to the date of the consent judgment.

The Alberta Court of Queen's Bench awarded the town solicitor and own client costs for 741431's application and for the present application.

Practice - Topic 9871

Settlements - Costs provision - A town sold land to 741431 Alberta Ltd. - The sale agreement set a deadline for construction to the "roof stage" or the town could repurchase the land - The deadline was not met - The town sought to repurchase the land - 741431 failed to execute a transfer -The town commenced an action - The action was settled by 741431 endorsing a consent judgment in the town's favour and providing a transfer of the property and the town agreeing not to use the consent judgment and transfer unless 741431 failed to reach the roof stage by a specified date - There was no construction by that date - 741431 applied for an order restraining the town from entering the consent judgment and registering the land transfer - The application was dismissed - The town applied for solicitor and own client costs of 741431's application based on the consent judgment, which referred to legal costs on a solicitor and own client basis being deductible from the price paid by the town to repurchase the land - 741431 argued that the terms of the consent judgment applied only to costs up to the date of the consent judgment - The Alberta Court of Queen's Bench awarded the town solicitor and own client costs for 741431's application and the present application - The costs referred to in the consent judgment included costs incurred after the settlement.

Cases Noticed:

Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161; 49 R.F.L.(3d) 117, refd to. [para. 23, footnote 2].

Winters v. Legal Services Society (B.C.), [1999] 3 S.C.R. 160; 244 N.R. 203; 128 B.C.A.C. 161; 208 W.A.C. 161; 137 C.C.C.(3d) 371; 27 C.R.(5th) 1; [1999] 9 W.W.R. 327, reving. (1997), 92 B.C.A.C. 253; 150 W.A.C. 253 (C.A.), refd to. [para. 23, footnote 3].

Black & Company v. Law Society of Alberta, [1990] 2 W.W.R. 419; 100 A.R. 202; 63 D.L.R.(4th) 98; 71 Alta. L.R.(2d) 20; 39 C.P.C.(2d) 86 (Q.B.), refd to. [para. 23, footnote 4].

Holloway v. Holloway (2001), 199 Nfld. & P.E.I.R. 1; 600 A.P.R. 1 (Nfld. C.A.), refd to. [para. 23, footnote 5].

Octa Hage Enterprises Ltd. v. Bank of Credit & Commerce Canada (1988), 59 Alta. L.R.(2d) 31 (C.A.), refd to. [para. 24, footnote 7].

Sinclair and Sinclair (Ed) Construction & Supplies Ltd. v. Tomic, Tomic and Atomic Welding Ltd. and Sinclair (1982), 47 A.R. 189 (Q.B.), refd to. [para. 26, footnote 8].

Yazdani-Yazdeli et al. v. Naziripour et al., [1993] 3 W.W.R. 424; 109 Sask.R. 164; 42 W.A.C. 164; 13 C.P.C.(3d) 162 (C.A.), refd to. [para. 27, footnote 9].

Jackson and Parkview Holdings Ltd. v. Trimac Industries Ltd. et al., [1993] 4 W.W.R. 670; 138 A.R. 161; 8 Alta. L.R.(3d) 403 (Q.B.), affd. [1994] 8 W.W.R. 237; 155 A.R. 42; 73 W.A.C. 42; 20 Alta. L.R.(3d) 117 (C.A.), refd to. [para. 28, footnote 10].

Frank v. Canada (Minister of Indian and Northern Affairs) (1987), 88 A.R. 251 (C.A.), refd to. [para. 36, footnote 11].

Frank v. King Estate - see Frank v. Canada (Minister of Indian and Northern Affairs).

Manufacturers Life Insurance Co. v. Toronto-Dominion Bank, [1989] 1 W.W.R. 474; 92 A.R. 92 (C.A.), refd to. [para. 37, footnote 12].

Credit Foncier Trust Co. v. Hornigold (1984), 59 A.R. 103; 35 Alta.L.R.(2d) 341 (Q.B.), refd to. [para. 38, footnote 13].

Harper v. Kami's Eating & Meeting Place et al. (1996), 16 O.T.C. 153; 4 C.P.C.(4th) 134 (Gen. Div.), refd to. [para. 40, footnote 14].

Canada Deposit Insurance Corp. v. Canadian Commercial Bank (1999), 243 A.R. 168 (Q.B.), refd to. [para. 43, footnote 15].

West Edmonton Mall Ltd. v. McDonald's Restaurants of Canada Ltd. (1995), 178 A.R. 127; 110 W.A.C. 127 (C.A.), refd to. [para. 43, footnote 16].

Alberta v. Nilsson (2003), 327 A.R. 187; 296 W.A.C. 187 (C.A.), refd to. [para. 43, footnote 17].

Miglin v. Miglin (2003), 302 N.R. 201; 171 O.A.C. 201 (S.C.C.), reving. (2001), 144 O.A.C. 155; 53 O.R.(3d) 641 (C.A.), refd to. [para. 43, footnote 18].

Authors and Works Noticed:

Stevenson, William A., and Côté, Jean E., Civil Procedure Encyclopedia (2003), pp. 72-67, 72-68 [para. 23, footnote 6].

Counsel:

Murray L. Engelking (Campbell & Company), for the applicant;

Rod J. Wasylyshyn (Ogilvie LLP), for the respondent.

This application was heard on April 28, 2003, before Watson, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following memorandum of decision on April 29, 2003.