Botan v. St. Amand, (2012) 538 A.R. 307 (QB)

• Judge: Michalyshyn, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 08, 2012
• Citations: (2012), 538 A.R. 307 (QB);2012 ABQB 260

Botan v. St. Amand (2012), 538 A.R. 307 (QB)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. MY.014

Allan Mitchell Glen Botan Operating as Botan Law Office (plaintiff) v. Brian Gerrard St. Amand (defendant)

(1003 19856; 2012 ABQB 260)

Indexed As: Botan v. St. Amand

Alberta Court of Queen's Bench

Judicial District of Edmonton

Michalyshyn, J.

April 18, 2012.

Summary:

Botan sued St. Amand, his former client, for $106,250 plus interest and solicitor-client costs. He alleged he was owed $58,633 arising from a 25% contingency fee agreement. He also claimed damages for fraud and similar allegations. St. Amand said he fired Botan before he was obliged to pay the 25% fee. Once terminated, the agreement provided Botan's fee would be set on an hourly basis.

The Alberta Court of Queen's Bench, in a decision reported at (2011), 529 A.R. 313, set Botan's fee at $5,250. The fraud and related allegations were rejected. St. Amand sought costs. Days before Botan had commenced the claim, St. Amand had offered to pay $10,000 in legal fees to resolve the matter.

The Alberta Court of Queen's Bench concluded that St. Amand was entitled to costs, in the amount of $37,538.60. St. Amand was entitled to $20,000 as an appropriate measure of solicitor-client costs for the preparation for and conduct of the trial. The court increased pre-trial costs payable under Schedule C, column 2, by one-third, to take into account the informal offer.

Barristers and Solicitors - Topic 847

Duty to court - Liability for costs - Improper allegation in pleadings - [See Barristers and Solicitors - Topic 3354 ].

Barristers and Solicitors - Topic 3354

Compensation - Actions against clients - Costs - Botan sued St. Amand, his former client - He alleged he was owed $58,633.33 arising from a 25% contingency fee agreement - He also claimed punitive and aggravated damages for fraud and similar allegations - St. Amand said he fired Botan before he was obliged to pay the 25% fee - Once terminated, the agreement provided Botan's fee would be set on an hourly basis (the alternative compensation) - The trial judge set Botan's fee at $5,250, based on the alternative compensation, and rejected the fraud and related allegations - On the eve of the litigation, St. Amand had offered to pay $10,000 in legal fees - St. Amand sought to collect solicitor-client costs of some $85,000 - The Alberta Court of Queen's Bench concluded that St. Amand was entitled to costs of $37,538.60 - St. Amand had substantial success - Botan failed on the central issue (when the agreement was terminated) because the court had disbelieved him - Botan also did nothing to assist the court with regard to the alternative compensation - Given the circumstances surrounding the unproven allegations, as well as Botan's conduct as a lawyer making those allegations, St. Amand was entitled to $20,000 as an appropriate measure of solicitor-client costs for the preparation for and conduct of the trial - The court increased pre-trial costs payable under Schedule C, column 2, by one-third, to take into account the informal offer - See paragraphs 48 to 90.

Practice - Topic 7102

Costs - Party and party costs - Special orders - Costs payable on a solicitor and client basis - [See Barristers and Solicitors - Topic 3354 ].

Practice - Topic 7109.1

Costs - Party and party costs - Special orders - Increased costs (based on solicitor and client or special costs) - [See Barristers and Solicitors - Topic 3354 ].

Practice - Topic 7111.2

Costs - Party and party costs - Special orders - Increase in scale of costs - Effect of settlement offers - [See Barristers and Solicitors - Topic 3354 ].

Practice - Topic 7243

Costs - Party and party costs - Offers to settle - Effect of failure to accept - Days before the plaintiff, a lawyer (Botan) had commenced the within claim against the defendant, his former client, the client had offered to pay $10,000 in legal fees to resolve the matter - The client had substantial success - The Alberta Court of Queen's Bench considered the question of whether to give any costs effect to the informal offer, and to what extent - "[W]ithout intending to be exhaustive on the issue, the following are relevant considerations in the case before me: (a) the offer was made in writing, and was clear and unambiguous; (b) it was made to a lawyer who knew or ought to have known the state of the law around even informal offers, and of the adverse costs consequences that could potentially follow; (c) it was made before any claim was commenced, doubtless in the hope further hostilities could be avoided; (d) it was open for acceptance for only 12 days: while in some cases that would arguably be too short a time for reasonable consideration, here 12 days was ample for Botan to consider the pros and cons of rejecting the offer and carrying on to litigate; (e) it was a generous offer, nearly double Botan's recovery at the trial of issues." - In the end result, the court was satisfied it was appropriate to consider the informal offer when assessing costs - See paragraphs 81 and 82.

Practice - Topic 7247.1

Costs - Party and party costs - Offers to settle - Costs to successful defendant - [See Barristers and Solicitors - Topic 3354 ].

Practice - Topic 7427.1

Costs - Solicitor and client costs - Measure of - Lump sum - [See Barristers and Solicitors - Topic 3354 ].

Practice - Topic 7470

Costs - Solicitor and client costs - Entitlement to - Unproved allegation of fraud - [See Barristers and Solicitors - Topic 3354 ].

Cases Noticed:

Ritchot v. Law Society of Manitoba (2010), 251 Man.R.(2d) 121; 478 W.A.C. 121; 2010 MBCA 13, refd to. [para. 46].

Beacon Hill Service (2000) Ltd. v. Esso Petroleum Canada et al. (2011), 512 A.R. 212; 2011 ABQB 138, refd to. [para. 47].

Mitrovic v. Mitrovic, [2007] A.R. Uned. 168; 2007 ABQB 107, refd to. [para. 49].

Mahe et al. v. Boulianne, [2010] A.R. Uned. 25; 2010 ABCA 74, refd to. [para. 50].

Gainers Inc. v. Pocklington Holdings Inc. (1996), 180 A.R. 392 (Q.B.), refd to. [para. 50].

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, refd to. [para. 61].

599291 Alberta Ltd. v. Luff et al. (2005), 385 A.R. 175; 2005 ABQB 892, refd to. [para. 62].

Hamilton v. Open Window Bakery Ltd. et al., [2004] 1 S.C.R. 303; 316 N.R. 265; 184 O.A.C. 209; 2004 SCC 9, refd to. [para. 65].

Conway et al. v. Zinkhofer, [2007] A.R. Uned. 419; 2007 ABQB 2, refd to. [para. 66].

College of Physicians and Surgeons (Alta.) v. J.H. et al. (2009), 468 A.R. 101; 2009 ABQB 48, refd to. [para. 67].

Davis v. 850015 Alberta Ltd. et al. (2003), 335 A.R. 172; 2003 ABPC 68, refd to. [para. 67].

Parkridge Homes Ltd. v. Anglin, [1996] A.J. No. 768 (Q.B.), refd to. [para. 74].

Collins v. Collins (1999), 256 A.R. 311; 1999 ABQB 707, refd to. [para. 75].

Burgener et al. v. Code Mortgage Investment Corp. et al., [2008] A.R. Uned. 453; 172 A.C.W.S.(3d) 590; 2008 ABQB 583, refd to. [para. 76].

Broda v. Broda et al., [2003] A.R. Uned. 208; 2003 ABQB 257, refd to. [para. 76].

Gauthier v. Butkevich, [2010] A.R. Uned. 465; 2010 ABQB 357, refd to. [para. 80].

Counsel:

Simon M. Renouf, Q.C., for the plaintiff;

Dennis G. Groh, Q.C., for the defendant.

This costs matter was heard on February 8, 2012, before Michalyshyn, J., of the Alberta Court of Queen's Bench, who delivered the following judgment, with reasons, dated at Edmonton, Alberta, on April 18, 2012.