Berube v. Bobier, (1999) 236 A.R. 119 (QB)

• Judge: Lee, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 25, 1999
• Citations: (1999), 236 A.R. 119 (QB)

Berube v. Bobier (1999), 236 A.R. 119 (QB)

MLB headnote and full text

Temp. Cite: [1999] A.R. TBEd. AP.024

Normand Berube and Betty Anne Berube (respondents/plaintiffs) v. James Stanley Bobier (applicant/defendant)

(Action No. 9403-07708)

Indexed As: Berube v. Bobier

Albert Court of Queen's Bench

Judicial District of Edmonton

Lee, J.

March 25, 1999.

Summary:

The defendant made an offer of judgment on July 31, 1997. The plaintiffs accepted it on October 22, 1998. A special chambers application was commenced for advice and direction on costs. At issue was whether a Bill of Costs was taxed under the new Sche­dule C under rule 601.1, which was effective September 1, 1998, and whether the plain­tiffs were entitled to disbursements incurred after July 31, 1997 to the date of judgment.

The Alberta Court of Queen's Bench, in a decision reported at 236 A.R. 110, granted judgment pursuant to rule 169(2) and awarded costs pursuant to the new Schedule C, both before and after September 1, 1998. One item was excluded from the plaintiffs' disbursements. The de­fendant sought leave to appeal.

The Alberta Court of Queen's Bench granted leave to appeal.

Practice - Topic 8298

Costs - Appeals - Appeals from order for costs - Requirement of leave to appeal - The plaintiffs accepted an offer of judg­ment made by the defendant - The Alberta Court of Queen's Bench granted judgment pursuant to rule 169(2) plus costs - The defendant sought leave to appeal on the costs order - The Alberta Court of Queen's Bench granted leave to appeal - Leave was required to appeal a cost order alone, even when a judge made an error of law or fact - Leave should be sparingly given, unless the judge was convinced that there had been an exercise of discretion upon the wrong principle of law - Leave required some issue of law, not simply a review of discretion - Leave to appeal should be granted where there was a dis­creet possible error of law involved in the exercise of what was otherwise a discre­tionary decision.

Cases Noticed:

Yakimyshyn v. Yakimyshyn (1994), 157 A.R. 157; 77 W.A.C. 157; 22 Alta. L.R.(3d) 305 (C.A.), refd to. [para. 10].

Colborne Capital Corp. et al. v. 542775 Alberta Ltd. et al. (1995), 171 A.R. 241; 37 Alta. L.R.(3d) 8 (Q.B.), affd. (1996), 184 A.R. 63; 38 Alta. L.R.(3d) 127 (C.A.), refd to. [para. 11].

Prodon v. Vickrey et al. (1988), 93 A.R. 244 (Q.B.), refd to. [para. 15].

Director of the Parentage and Maintenance Act (Alta.) v. B.C. (1993), 143 A.R. 181; 12 Alta. L.R.(3d) 422 (Q.B.), refd to. [para. 18].

Pugh et al. v. Schepanovich (1993), 159 A.R. 397 (Q.B.), refd to. [para. 20].

C & I Insulation Distributors Ltd. et al. v. 318648 Alberta Ltd. et al. (1989), 98 A.R. 305 (C.A.), refd to. [para. 22].

Authors and Works Noticed:

Kerans, R.P., Standards of Review Employed by Appellant Courts, pp. 70 [para. 13]; 70 to 72 [para. 14].

Stevenson, Côté, 1996 Civil Procedure Guide, vol. 2, p. 1634 [para. 9].

Counsel:

Peter R. Chomicki, Q.C., for the appli­cant/defendant;

Terrence M. Kulasa, for the respon­dents/plaintiffs.

This application was heard by Lee, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on March 25, 1999.