Chemerinski v. Richter, 2011 ABQB 417

• Judge: Veit, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: May 13, 2011
• Citations: 2011 ABQB 417;(2011), 525 A.R. 311 (QB)

Chemerinski v. Richter (2011), 525 A.R. 311 (QB)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. JL.060

Anne Marie Chemerinski, Carson William Chemerinski and Anne Marie Chemerinski and Carson William Chemerinski, Administrators of the Estate of Carson Russell Chemerinski, Deceased for and on behalf of the Estate of Carson Russell Chemerinski (applicants) v. Calvin Richter and Susan M. Richter (respondents)

(1103 03095; 2011 ABQB 417)

Indexed As: Chemerinski v. Richter

Alberta Court of Queen's Bench

Judicial District of Edmonton

Veit, J.

June 30, 2011.

Summary:

The parties were all related by blood or by marriage. Legal proceedings were commenced by the parties against one another. In May 2008, the parties agreed to a judicial dispute resolution meeting. The agreement included the following terms: the senior Chemerinskis would proceed forthwith with the subdivision of quarter 3, and would pay the Richters $50,000 upon the subdivision and, if the parties were unable to agree on the configuration of a 10 acre parcel which would become the property of the Richters, they would retain an arbitrator to settle the dispute. It was agreed to go to arbitration. The parties subsequently asked the arbitrator to issue an interim consent award. The Chemerinskis obtained leave to appeal the arbitral award. The Chemerinskis applied for an order removing a certificate of lis pendens placed on their lands by the Richters and an order reversing the arbitrator's decision to deny them arbitral costs.

The Alberta Court of Queen's Bench determined the issues.

Arbitration - Topic 5721

The award - Costs - General - The parties were all related by blood or by marriage - Legal proceedings were commenced by the parties against one another - In May 2008, the parties agreed to a judicial dispute resolution meeting - An agreement included the following terms: the senior Chemerinskis would proceed forthwith with the subdivision of quarter 3, and would pay the Richters $50,000 upon the subdivision and, if the parties were unable to agree on the configuration of a 10 acre parcel which would become the property of the Richters, they would retain an arbitrator to settle the dispute - It was agreed to go to arbitration - The parties subsequently asked the arbitrator to issue an interim consent award - The Chemerinskis obtained leave to appeal the arbitral award - The Chemerinskis applied for an order reversing the arbitrator's decision to deny them arbitral costs - The Chemerinskis asserted that the arbitrator failed to recognize that it was the Chemerinskis' position that was adopted in the consent award - The Alberta Court of Queen's Bench dismissed the application - The arbitrator recognized that costs typically followed the event - However, in the circumstances here, there was no arbitration event because the parties reached a settlement and took the subject of their dispute away from the arbitrator - Where there was a settlement between parties to a dispute, usually, each of the settling parties expected to gain something from the settlement - Here, the arbitrator did her best to determine what cards each of the parties was holding immediately prior to the consent arbitral award, but could not come to a conclusion on that issue because of the importance which the parties attached to the outstanding lease and the fact that the arbitrator was not privy to any of those negotiations - In summary, the arbitrator outlined her reasons for not following the general principle in the situation before her and she acted judicially - See paragraphs 43 to 45.

Arbitration - Topic 5721

The award - Costs - General - The parties were all related by blood or by marriage - Legal proceedings were commenced by the parties against one another - In May 2008, the parties agreed to a judicial dispute resolution meeting - An agreement included the following terms: the senior Chemerinskis would proceed forthwith with the subdivision of quarter 3, and would pay the Richters $50,000 upon the subdivision and, if the parties were unable to agree on the configuration of a 10 acre parcel which would become the property of the Richters, they would retain an arbitrator to settle the dispute - It was agreed to go to arbitration - The parties subsequently asked the arbitrator to issue an interim consent award - The Chemerinskis obtained leave to appeal the arbitral award - The Chemerinskis applied for an order reversing the arbitrator's decision to deny them arbitral costs - The Chemerinskis asserted that the arbitrator took into account extraneous and irrelevant factors in concluding that each party should bear their own costs - The Alberta Court of Queen's Bench dismissed the application - It would be an error of law to take extraneous factors into account in making a costs award - However, the reference to the lease negotiations was not such an extraneous factor - On the contrary, in the very settlement agreement which produced the consent arbitral award, an important component was the anticipated lease agreement - The parties asked the arbitrator to include a reference to the lease negotiations in her interim award - A proper subject of an arbitral award could not be extraneous to that arbitration - Therefore, consideration of the very lease that was a feature of the interim award was not, in the circumstances here, extraneous - See paragraph 46.

Courts - Topic 355

Judges - Exercise of authority - Exercise of discretionary power - The parties were all related by blood or by marriage - Legal proceedings were commenced by the parties against one another - In May 2008, the parties agreed to a judicial dispute resolution meeting with Sanderman, J. - An agreement included the following terms: the senior Chemerinskis would proceed forthwith with the subdivision of quarter 3, and would pay the Richters $50,000 upon the subdivision and, if the parties were unable to agree on the configuration of a 10 acre parcel which would become the property of the Richters, they would retain an arbitrator to settle the dispute - It was agreed to go to arbitration - The parties subsequently asked the arbitrator to issue an interim consent award - The Chemerinskis obtained leave to appeal the arbitral award - The Chemerinskis applied for an order removing a certificate of lis pendens placed on their lands by the Richters - The Alberta Court of Queen's Bench exercised its discretion to decline to hear the application - The Chemerinskis had failed, without adequate explanation, to comply in a timely way with the judgment of Sanderman J. relating to the ownership of land - In those circumstances, the court exercised its discretion to decline to hear the Chemerinskis' application for the removal of a lis pendens on the subject land - The Chemerinskis' inaction impeded the course of justice and undermined the court's ability to enforce its own orders - See paragraphs 20 to 32.

Practice - Topic 5941

Judgments and orders - Enforcement of orders - General - [See Courts - Topic 355 ].

Cases Noticed:

Willick v. Willick (1994), 158 A.R. 52; 1994 CarswellAlta 477 (Q.B.), refd to. [para. 6].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; 1998 CarswellNat 830, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, refd to. [para. 6].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 CarswellBC 713; 2003 SCC 19, refd to. [para. 6].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 Carswell NB 124; 2008 SCC 9, refd to. [para. 6].

Heredity Homes (St. Albert) Ltd. v. Scanga (2009), 471 A.R. 361; 79 C.L.R.(3d) 308; 2009 CarswellAlta 585; 2009 ABQB 237, refd to. [para. 6].

Mahe et al. v. Boulianne, [2010] A.R. Uned. 25; 21 Alta. L.R.(5th) 277; 2010 CarswellAlta 396; 2010 ABCA 74, refd to. [para. 6].

Canada Deposit Insurance Corp. v. Canadian Commercial Bank (1989), 95 A.R. 1; 1989 CarswellAlta 325 (Q.B.), refd to. [para. 6].

Necrovore Inc. et al. v. Andover Land Corp. et al., [2007] O.T.C. Uned. H61; 66 C.L.R.(3d) 252; 2007 CarswellOnt 6372 (Sup. Ct.), refd to. [para. 6].

Dickie v. Dickie (2006), 206 O.A.C. 257; 2006 CarswellOnt 118 (C.A.), refd to. [para. 6].

Magder (Paul) Furs Ltd. et al. v. Ontario (Attorney General) (1991), 52 O.A.C. 151; 191 CarswellOnt 403 (C.A.), refd to. [para. 6].

Broda v. Broda et al. (2004), 346 A.R. 376; 320 W.A.C. 376; 2004 CarswellAlta 181; 2004 ABCA 73, refd to. [para. 6].

732311 Alberta Ltd. v. Paradise Bay Spa & Tub Warehouse Inc. et al. (2003), 332 A.R. 315; 2003 CarswellAlta 392; 2003 ABQB 228, refd to. [para. 6].

Knox et al. v. Conservative Party of Canada et al. (2007), 422 A.R. 29; 415 W.A.C. 29; 2007 CarswellAlta 1387; 2007 ABCA 295, refd to. [para. 7].

Heredity Homes (St. Albert) Ltd. v. Scanga (2009), 471 A.R. 361; 2009 CarswellAlta 585; 79 C.L.R.(3d) 308; 2009 ABQB 237, refd to. [para. 7].

Babcock & Wilcox Canada Ltd. v. Agrium Inc. (2005), 363 A.R. 103; 343 W.A.C. 103; 39 Alta. L.R.(4th) 197; 2005 ABCA 82, refd to. [para. 7].

Huang et al. v. Drinkwater et al., [2005] A.R. Uned. 297; 2005 ABQB 272, refd to. [para. 7].

Metcalfe v. Metcalfe (2006), 407 A.R. 103; 2006 ABQB 798, refd to. [para. 7].

Director of Child, Youth and Family Enhancement (Alta.) v. B.M. (2009), 460 A.R. 188; 462 W.A.C. 188; 2009 ABCA 258, refd to. [para. 7].

Bains Engineering Corp. v. 734560 Alberta Ltd. et al. (2004), 366 A.R. 291; 2004 ABQB 780, refd to. [para. 7].

Fielding v. Steele, [1995] DRS 95-13811; 169 A.R. 47; 97 W.A.C. 47 (C.A.), refd to. [para. 7].

E.F. v. J.S.S. - see Fielding v. Steele.

Future Inns Canada Inc. v. Labour Relations Board (N.S.) et al. (1996), 154 N.S.R.(2d) 358; 452 A.P.R. 358 (C.A.), refd to. [para. 7].

Protect-A-Home Services Inc. v. Heber (2002), 160 Man.R.(2d) 100; 262 W.A.C. 100; 2001 MBCA 171, refd to. [para. 7].

Glase v. Glase (2009), 274 B.C.A.C. 1; 463 W.A.C. 1; 2009 BCCA 321, refd to. [para. 7].

Boe v. Hamilton, [1988] B.C.J. No. 2002 (C.A.), refd to. [para. 8].

Hopper v. Hopper et al. (2011), 370 N.B.R.(2d) 355; 956 A.P.R. 355; 2011 NBCA 37, refd to. [para. 8].

Kelly v. Lyle, 2003 YKSC 8, refd to. [para. 8].

Authors and Works Noticed:

Casey, J. Brian, and Mills, Janet, Arbitration Law of Canada: Practice and Procedure (2005), generally [para. 6].

Counsel:

Paul V. Stocco (Brownlee LLP), for the Chemerinskis;

Phyllis Van Campenhout (Hall & Van Campenhout), for the Richters.

These applications were heard on April 28 and May 13, 2011, by Veit, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following memorandum of decision on June 30, 2011.