911502 Alberta Ltd. v. Elephant Enterprises Inc.,

JudgeHughes,Rowbotham,Veldhuis
Neutral Citation2015 ABCA 65
Subject MatterPRACTICE
Citation2015 ABCA 65,(2015), 599 A.R. 119,599 AR 119,(2015), 599 AR 119,599 A.R. 119
Date17 February 2015
CourtCourt of Appeal (Alberta)

911502 Alta. v. Elephant Ent.  (2015), 599 A.R. 119; 643 W.A.C. 119 (CA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. MR.052

911502 Alberta Ltd. (respondent/plaintiff) v. Elephant Enterprises Inc. (appellant/defendant)

(1301-0355-AC; 2015 ABCA 65)

Indexed As: 911502 Alberta Ltd. v. Elephant Enterprises Inc.

Alberta Court of Appeal

Rowbotham and Veldhuis, JJ.A., and Hughes, J.(ad hoc)

February 17, 2015.

Summary:

The parties were adjacent landowners. The plaintiff sought an order for specific performance directing the defendant to remove a fence, an injunction preventing the erection of a new fence, a declaration that a caveat was valid, special damages of $559.25, interest and costs. The plaintiff applied for summary judgment and asked for solicitor and client costs.

The Alberta Court of Queen's Bench granted the application and ordered the defendant to pay solicitor and client costs. The defendant appealed the decision ordering it to pay solicitor and client costs.

The Alberta Court of Appeal, in a decision reported at (2014), 588 A.R. 296; 626 W.A.C. 296, allowed the appeal. The plaintiff was entitled to party and party costs on the appropriate column of Schedule C. The parties were unable to agree on the appropriate column, the items which should be included and some of the disbursements. The Court invited written submissions.

The Alberta Court of Appeal held that column 1 was the appropriate column, and that the respondent should have costs for all of those steps for which the chambers judge awarded costs. The Court set the disputed disbursements at $2,000.

Practice - Topic 7004

Costs - Party and party costs - General principles and definitions - Scale of costs - Fixing of - [See first Practice - Topic 8296 ].

Practice - Topic 7110

Costs - Party and party costs - Special orders - Increase in scale of costs - General - [See first Practice - Topic 8296 ].

Practice - Topic 7131

Costs - Party and party costs - Disbursements - General (incl. discretion of court) - [See third Practice - Topic 8296 ].

Practice - Topic 8296

Costs - Appeals - Appeals from order granting or denying costs - General - The respondent on this appeal was entitled to party and party costs on the appropriate column of Schedule C for the same steps that had formed the basis of the chambers judge's earlier award of costs - The parties were unable to agree on the appropriate column - The appellant submitted that the appropriate column was column 1 (Rules of Court, Schedule C, Division 1, s. 1(4), and Division 2 (The Tariff) - The respondent asked that the matter be sent back to the chambers judge for a full determination of the issue as it wished to seek costs under a higher column - The chambers judge issued his decision on costs over four years before the hearing of the appeal - The Alberta Court of Appeal held that there was no reason to return the matter to the chambers judge and incur further delay and expense to the parties - The Court agreed with the appellant that column 1 was the appropriate column - This was consistent with an earlier determination in the Court of Queen's Bench that denied the respondent's request for costs under column 5 and awarded costs under column 1 - See paragraph 4.

Practice - Topic 8296

Costs - Appeals - Appeals from order granting or denying costs - General - The respondent was entitled to party and party costs on the appropriate column of Schedule C for the same steps that had formed the basis of the chambers judge's earlier award of costs - The parties were unable to agree on the items for which the respondent was entitled to costs - The Alberta Court of Appeal held that the respondent should have costs for all of those steps for which the chambers judge awarded costs - The chambers judge listed those steps in the order under appeal - If there were additional appearances before the chambers judge to settle costs or to settle the terms of the chambers judge's order, the respondent was also entitled to those costs - See paragraph 5.

Practice - Topic 8296

Costs - Appeals - Appeals from order granting or denying costs - General - The respondent was entitled to party and party costs on the appropriate column of Schedule C for the same steps that had formed the basis of the chambers judge's earlier award of costs - With respect to disbursements, the chambers judge directed that the costs should include "all preparation, letters, emails, meetings, written briefs, follow-up work and attendance at hearings" - The appellant now disputed fax charges, agent's fees, and Quicklaw charges (total $1031.27) and asked for a reduction of one third for the photocopy disbursement (from $977.25 to $651.50) - The Alberta Court of Appeal stated that "[o]rdinarily the resolution of these issues is the role of an assessment officer. However, in the interests of ending this lawsuit we set the disputed disbursements at $2000" - See paragraph 6.

Statutes Noticed:

Rules of Court (Alta.), Reg. 124/2010, Schedule C, Division 1, s. 1(4); Division 2 [para. 3].

Counsel:

I. Bernardo, Q.C., for the respondent;

S.T. Fitzgerald, for the appellant.

This costs matter was heard by way of written submissions, reviewed by Rowbotham and Veldhuis, JJ.A., and Hughes, J.(ad hoc), of the Alberta Court of Appeal. The Court delivered the following memorandum of judgment, filed at Calgary, Alberta, on February 17, 2015.

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