Boyd v. JBS Foods Canada Inc. et al., (2015) 602 A.R. 84

• Judge: Fraser, C.J.A., Côté and Wakeling, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: June 05, 2015
• Citations: (2015), 602 A.R. 84;2015 ABCA 191

Boyd v. JBS Foods Can. Inc. (2015), 602 A.R. 84; 647 W.A.C. 84 (CA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. JN.039

Larry Boyd (applicant/respondent) v. JBS Foods Canada Inc. (as successor to XL Foods Ltd.)

(respondent/appellant) and The Workers' Compensation Board of Alberta and Appeals Commission for Alberta Workers' Compensation (respondents/respondents)

(1401-0234-AC; 2015 ABCA 191)

Indexed As: Boyd v. JBS Foods Canada Inc. et al.

Alberta Court of Appeal

Fraser, C.J.A., Côté and Wakeling, JJ.A.

June 5, 2015.

Summary:

The respondent brought an application before three judges of the Court of Appeal to dismiss the appellant's appeal summarily. The respondent's complaints were procedural, not lack of merit.

The Alberta Court of Appeal, in a decision reported at [2015] A.R. Uned. 55, dismissed the application. The appellant sought higher costs than usual. The respondent would only concede the bottom column (scale) of party-party costs.

The Alberta Court of Appeal, Fraser, C.J.A. dissenting, held that there should be some enhancement of the party-party costs payable for the failed summary application. They would be computed on column 4 of Schedule C. The court also fixed a lump sum of $900 as the costs (fee) for the present costs application. Reasonable disbursements would be added, for all steps. Those costs were payable whatever the later result of the appeal might be.

Practice - Topic 7110

Costs - Party and party costs - Special orders - Increase in scale of costs - General - [See Practice - Topic 8861 ].

Practice - Topic 7364

Costs - Costs of interlocutory proceedings - Costs of motions or applications - [See Practice - Topic 8861 ].

Practice - Topic 8861

Appeals - Quashing or dismissal of appeals - General - The respondent applied before three judges of the Court of Appeal to dismiss the appellant's appeal summarily - The respondent's complaints were procedural, not lack of merit - The application was dismissed - The appellant sought higher costs than usual - The respondent would only concede the bottom column (scale) of party-party costs - The Alberta Court of Appeal held that there should be some enhancement of the party-party costs payable for the failed summary application - They would be computed on column 4 of Schedule C - The court also fixed a lump sum of $900 as the costs (fee) for the costs application - Reasonable disbursements would be added, for all steps - Those costs were payable whatever the later result of the appeal might be - The court stated, inter alia, "Courts of Appeal do not encourage such summary applications, especially as they rarely save anyone time or money. ... An important reason to increase costs is that the total work of the appellant has almost been doubled by the respondent. This motion has entailed almost all the work and procedures of a full appeal. ... On top of everything else, the fees for applications (motions) in Schedule C are modest. ... Though there is no serious litigation misconduct here, there is some degree of unfounded imputation. The respondent's application materials alleged that by appealing, the appellant had sprung some sort of an ambush upon the respondent. But the facts were closer to the opposite" - See paragraphs 1 to 17.

Cases Noticed:

Freyberg v. Fletcher Challenge Oil and Gas Inc. et al. (2006), 397 A.R. 235; 384 W.A.C. 235; 2006 ABCA 260, refd to. [para. 19].

Louw v. Hamelin-Chandler, [2012] A.R. Uned. 84; 2012 ABQB 52, refd to. [para. 19].

Lum v. Review Panel of the Council of the Alberta Dental Association and College, [2015] A.R. TBEd. MY.025; 2015 ABQB 276, refd to. [para. 19].

Sussman v. College of Alberta Psychologists (2010), 502 A.R. 64; 517 W.A.C. 64; 2010 ABCA 356, refd to. [para. 19].

Quebec (Attorney General) v. Lacombe et al., [2010] 2 S.C.R. 453; 407 N.R. 1; 2010 SCC 38, refd to. [para. 22].

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; 108 D.L.R.(4th) 193, refd to. [para. 22].

Western Grain Cleaning and Processing Ltd. v. L.C. Taylor & Co. Ltd. - see Agritrans Logistics Ltd. (Bankrupt), Re.

Agritrans Logistics Ltd. (Bankrupt), Re (2005), 195 Man.R.(2d) 47; 351 W.A.C. 47; 254 D.L.R.(4th) 454; 2005 MBCA 68, refd to. [para. 22].

Minas Basin Holdings Ltd. v. Bryant (P.) Enterprises Ltd. et al. (2010), 289 N.S.R.(2d) 26; 916 A.P.R. 26; 2010 NSCA 17, refd to. [para. 22].

International Association of Machinists and Aerospace Workers, Local Lodge No. 99 v. Finning International Inc. et al., [2006] A.R. Uned. 493; 2006 ABQB 594, refd to. [para. 23].

Canadian Western Bank v. 702348 Alberta Ltd. et al. (2011), 502 A.R. 96; 517 W.A.C. 96; 2011 ABCA 10, refd to. [para. 23].

Blaze Energy Ltd. v. Imperial Oil Resources et al., [2014] A.R. Uned. 353; 2014 ABQB 509, refd to. [para. 25].

Authors and Works Noticed:

Stevenson, William A., and Côté, Jean E., Alberta Civil Procedure Handbook (2015), pp. 14-163, 14-164 [para. 20].

Counsel:

J.R. Carpenter, for the applicant/respondent, Larry Boyd;

B.P. Kaliel, Q.C., and E.L. Johnson, for the respondent/appellant, JBS Foods Canada Inc.;

R.C. Goltz, for the respondent, Workers' Compensation Board;

J. Williamson, for the respondent, Appeals Commission for Alberta Workers' Compensation.

This costs matter was decided based on written submissions filed April 10 and 20, 2015, before Fraser, C.J.A., Côté and Wakeling, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment regarding costs was delivered on June 5, 2015, including the following opinions:

Côté and Wakeling, JJ.A. - see paragraphs 1 to 17;

Fraser, C.J.A., dissenting - see paragraphs 18 to 27.