Collavino Inc. v. Tihama Development Authority (TDA) an Organ of the Republic of Yemen

• Jurisdiction: Alberta
• Court: Court of Queen's Bench of Alberta (Canada)
• Judge: Wittmann
• Neutral Citation: 2007 ABQB 497
• Citation: (2007), 444 A.R. 1 (QB),2007 ABQB 497,(2007), 444 AR 1 (QB),444 AR 1,444 A.R. 1
• Date: 03 July 2007

Collavino Inc. v. Tihama Dev. Authority (2007), 444 A.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. MY.030

Collavino Incorporated (respondent/applicant) v. Tihama Development Authority (TDA) an Organ of the Republic of Yemen (applicant/respondent)

(0501 05991; 2007 ABQB 497)

Indexed As: Collavino Inc. v. Tihama Development Authority (TDA) an Organ of the Republic of Yemen

Alberta Court of Queen's Bench

Judicial District of Calgary

Wittmann, A.C.J.Q.B.

July 26, 2007.

Summary:

Collavino Inc. and the Tihama Development Authority (TDA) entered into a contract for constructing water canals and works in Yemen. Disputes arose. Collavino obtained an international commercial arbitration award against the TDA. The arbitration tribunal ruled that the only parties were the TDA and Collavino and that Yemen was not a party. Collavino brought an action in Alberta for recognition and enforcement of the award and obtained an ex parte order granting Collavino the ability to garnishee entities allegedly indebted to Yemen. Yemen sought a permanent stay or dismissal of the action against it under the State Immunity Act.

The Alberta Court of Queen's Bench, in a decision reported at (2007), 420 A.R. 89, held that the award could not be enforced against Yemen. The action as against Yemen was dismissed. The action as against the TDA as an entity distinct from Yemen could proceed. The parties disagreed regarding the form of the judgment to be entered and whether costs should be awarded.

The Alberta Court of Queen's Bench directed that the formal judgment was to include verbatim reasons from the reasons for judgment. The court declined to make any award of costs to either party.

Practice - Topic 5418

Judgments and orders - General - Drawing judgments and orders - Parties in a commercial dispute disagreed regarding the form of the judgment to be entered - The plaintiff's draft judgment reproduced the conclusions as stated in two paragraphs of the court's reasons for judgment - The defendant asserted that the formal judgment should not include reasons, but merely set out the result - The Alberta Court of Queen's Bench directed that the formal judgment was to include verbatim reasons from the reasons for judgment - It was clear from the authorities that it was wrong to recite points of law in formal judgments - The form of judgment could be as short as proposed by the defendant - However, it was permissible to adopt in the formal judgment the verbatim paragraphs as articulated in the court's reasons - This would ensure that there would be no conflict between the formal judgment and the conclusion in the reasons for judgment - Each of the conclusions in those paragraphs was a result on an issue and none were pure propositions of law - Some of the conclusions could be characterized as declaratory relief involving findings of mixed fact and law - See paragraphs 7 to 17.

Practice - Topic 7030

Costs - Party and party costs - Entitlement to party and party costs - Where success or fault divided - Collavino Inc. and the Tihama Development Authority (TDA) entered into a contract for constructing water canals and works in Yemen - Disputes arose - Collavino obtained an international commercial arbitration award against the TDA - The arbitration tribunal ruled that the only parties were the TDA and Collavino and that Yemen was not a party - Collavino brought an action in Alberta for recognition and enforcement of the award and obtained an ex parte order granting Collavino the ability to garnishee entities allegedly indebted to Yemen - Yemen sought a permanent stay or dismissal of the action against it under the State Immunity Act - The court held that the award could not be enforced against Yemen - The action as against Yemen was dismissed - The action as against the TDA as an entity distinct from Yemen could proceed - Yemen sought costs based on triple Column 5 of Schedule C - Yemen asserted that triple Column 5 costs were appropriate due to (i) the magnitude of what was at stake, (ii) the matter's complexity and (iii) Collavino's abuse of process - The Alberta Court of Queen's Bench declined to make any award of costs - Success was divided - Yemen succeeded on two issues, while Collavino succeeded on three - Each issue was fully argued in written briefs and orally - The evidence was generally applicable to more than one issue and some argument overlapped - For those reasons, each party was to bear their own costs of the motion brought by Yemen - See paragraphs 18 to 31.

Practice - Topic 7110.1

Costs - Party and party costs - Special orders - Increase in scale of costs - Conduct of opposite party - [See Practice - Topic 7030 ].

Practice - Topic 7115

Costs - Party and party costs - Special orders - Increase in scale of costs - Difficulty and complexity of proceedings - [See Practice - Topic 7030 ].

Cases Noticed:

Lee v. Lalonde (1991), 122 A.R. 361 (Q.B.), refd to. [para. 6].

Rassell (Bankrupt), Re (1999), 237 A.R. 136; 197 W.A.C. 136 (C.A.), folld. [para. 6].

Lavallee, Rackel and Heintz et al. v. Canada (Attorney General) (2000), 255 A.R. 86; 220 W.A.C. 86 (C.A.), folld. [para. 6].

Bishop of Victoria v. Victoria, [1933] 3 W.W.R. 332 (B.C.C.A.), refd to. [para. 8].

Paterson et al. v. Hamilton et al. (1996), 199 A.R. 239 (Q.B.), refd to. [para. 14].

Pharand Ski Corp. v. Alberta (1991), 122 A.R. 395; 81 Alta. L.R.(2d) 304 (Q.B.), refd to. [para. 23].

Nathu v. Imbrook Properties Ltd. (1992), 131 A.R. 186; 25 W.A.C. 186 (C.A.), refd to. [para. 24].

Wilde v. Isfeld (1994), 149 A.R. 237; 63 W.A.C. 237 (C.A.), refd to. [para. 25].

Authors and Works Noticed:

Stevenson, William A., and Côté, Jean E., Civil Procedure Guide (1989), generally [para. 8].

Counsel:

L. Leighton Decore (Biamonte Cairo & Shortreed), for the respondent/applicant;

David R. Haigh, Q.C. (Burnet Duckworth & Palmer LLP), for the applicant/respondent.

This application was heard on July 3, 2007, by Wittmann, A.C.J.Q.B., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for judgment on July 26, 2007.