Dallin v. Montgomery et al., (2010) 498 A.R. 292 (QB)

• Judge: Lee, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 05, 2010
• Citations: (2010), 498 A.R. 292 (QB);2010 ABQB 700

Dallin v. Montgomery (2010), 498 A.R. 292 (QB)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. NO.085

Jim Dallin (plaintiff) v. James Montgomery, Celestine Montgomery, 412058 Alberta Ltd., 1096325 Alberta Ltd., Russell A. Flint, Premier West Developments Ltd., 1096836 Alberta Ltd. and 587338 Alberta Ltd. (defendants)

James Montgomery (plaintiff by counterclaim) v. James Dallin (defendant by counterclaim)

(0403 07710; 2010 ABQB 700)

Indexed As: Dallin v. Montgomery et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Lee, J.

November 10, 2010.

Summary:

Dallin and Montgomery agreed to develop lands as condominium projects and to market the condominium units. The relationship dissolved. Dallin sued for an accounting, a share of the profits, declarations that certain properties were held in trust, and punitive damages. The defendants conceded that an oral agreement existed, but counterclaimed for damages on the basis that Dallin failed or neglected to carry out construction management and marketing services as promised.

The Alberta Court of Queen's Bench, in a decision reported at (2010), 498 A.R. 269, allowed the action in part and dismissed the counterclaim. The court dismissed the claim for punitive damages and invited submissions on costs. Dallin sought solicitor and client costs on a full indemnity basis, or alternatively a multiple of Column 6. Montgomery argued that a single award of party and party Costs on Column 4, Schedule C was the only appropriate costs award.

The Alberta Court of Queen's Bench, in a decision reported at (2010), 498 A.R. 287, held that costs of the trial proper should be awarded on a party-party basis on column 4, and further that no multiple of that column was required. The defendants appealed the whole of the trial decision. They sought a stay of enforcement of the full amount of the judgment and costs awarded at trial, pending the appeal.

The Alberta Court of Queen's Bench granted the stay with the condition that the defendants pay all monies owing pursuant to the monetary judgment into court pending the result of the appeal.

Practice - Topic 5854

Judgments and orders - Enforcement of judgments - Stay of - Dallin and Montgomery agreed to develop lands as condominium projects and to market the condominium units - The relationship dissolved - Dallin sued for an accounting, a share of the profits, declarations that certain properties were held in trust, and punitive damages - The trial judge allowed the action in part with costs - The defendants appealed the whole of the trial decision - They sought a stay of enforcement of the full amount of the judgment and costs awarded at trial, pending the appeal - The Alberta Court of Queen's Bench granted the stay with the condition that the defendants pay all monies owing pursuant to the monetary judgment into court pending the result of the appeal - Most if not all of the defendants' grounds for appeal pertained to findings of fact or findings of mixed fact and law, which generally could not be interfered with absent a finding of a palpable and overriding error - This, combined with the fact that the court was dealing with a strictly monetary judgment, would normally result in the court exercising its discretion in favour of Dallin - However, the court was satisfied that the defendants had established that Dallin would not likely have the ability to repay the money received on the execution of the substantial judgment - The proven inability to repay was considered to be the equivalent of irreparable harm for the purpose of the application of the tripartite test, and also formed a significant component of the classic test for stay of a monetary judgment.

Practice - Topic 8950

Appeals - Stay of proceedings pending appeal - General principles - Defendants applied for a stay of enforcement of a monetary judgment - The Alberta Court of Queen's Bench stated that "[t]wo separate tests have been posited in Alberta Courts as worthy of consideration when hearing an application for stay of a money Judgement. They are: a) The tripartite test applicable in the determination of whether to grant an interim injunction as recited in the Supreme Court of Canada decision in RJR-MacDonald v. Attorney General of Canada [1994 SCC]; b) The classic test for a stay of a money Judgment which was whether there was some merit to the appeal and whether successful the Plaintiff could repay the money if the appeal succeeded: Pyne v. Alberta (Workers' Compensation Board) [2006 Alta. C.A.]; Blacklaws v. Morrow [1998 Alta. C.A.]" - See paragraph 36.

Practice - Topic 8952

Appeals - Stay of proceedings pending appeal - When appellant entitled to stay - [See Practice - Topic 5854 ].

Practice - Topic 8954

Appeals - Stay of proceedings pending appeal - What constitutes "irreparable harm" - [See Practice - Topic 5854 ].

Cases Noticed:

Bowles v. Beamish (2008), 452 A.R. 319; 2008 ABQB 480, refd to. [para. 6].

Alberta (Minister of Consumer and Corporate Affairs) et al. v. Bennett et al. (1992), 131 A.R. 184; 25 W.A.C. 184 (C.A.), refd to. [para. 6].

Metropolitan Stores (MTS) Ltd. v. Manitoba Food and Commercial Workers, Local 832 and Labour Board (Man.), [1987] 1 S.C.R. 110; 73 N.R. 341; 46 Man.R.(2d) 241, refd to. [para. 8].

Foda v. Capital Health Region et al., [2007] A.R. Uned. 69; 2007 ABQB 258, refd to. [para. 9].

Elgert v. Home Hardware Stores Ltd. (2010), 22 Alta. L.R.(5th) 293; 2010 ABQB 220, refd to. [para. 10].

864789 Alberta Ltd. et al. v. Haas Enterprises Inc. et al. (2008), 446 A.R. 179; 442 W.A.C. 179; 2008 ABCA 420, refd to. [para. 11].

Alberta (Treasury Branches) et al. v. Pocklington Financial Corp. et al. (1998), 228 A.R. 115; 188 W.A.C. 115; 65 Alta. L.R.(3d) 283 (C.A.), refd to. [para. 14].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241, refd to. [para. 15].

155569 Canada Ltd. v. 248524 Alberta Ltd. et al. (1995), 178 A.R. 154; 110 W.A.C. 154; 37 Alta. L.R.(3d) 58 (C.A.), refd to. [para. 16].

Stochinsky v. Chetner et al. (2002), 316 A.R. 244; 2002 ABQB 296, refd to. [para. 17].

Edmonton (City) v. Guaranty Properties Ltd., [1998] A.R. Uned. 158 (C.A.), refd to. [para. 18].

Jager Industries Inc. v. Leduc No. 25 (County) (1997), 206 A.R. 303; 156 W.A.C. 303 (C.A.), refd to. [para. 18].

Director of Employment Standards (Alta.) v. Sanche - see Evans (Bankrupt), Re.

Evans (Bankrupt), Re (1992), 135 A.R. 46; 33 W.A.C. 46 (C.A.), refd to. [para. 19].

Edmonton (City) v. Westinghouse Canada Inc. et al. (1996), 187 A.R. 153; 127 W.A.C. 153 (C.A.), refd to. [para. 20].

Moses v. Weninger et al. (2006), 380 A.R. 230; 363 W.A.C. 230; 55 Alta. L.R.(4th) 37 (C.A.), refd to. [para. 21].

Pyne et al. v. Workers' Compensation Board (Alta.), [2007] A.W.L.D. 1154; 408 A.R. 196; 2006 ABQB 791, refd to. [para. 24].

Pyne et al. v. Workers' Compensation Board (Alta.) (2006), 401 A.R. 225; 391 W.A.C. 225; 68 Alta. L.R.(4th) 225 (C.A.), refd to. [para. 36].

Blacklaws et al. v. 470433 Alberta Ltd. (1998), 216 A.R. 393; 175 W.A.C. 393 (C.A.), refd to. [para. 36].

Acheson v. Dory (1993), 149 A.R. 71; 63 W.A.C. 71; 15 Alta. L.R.(3d) 43 (C.A.), refd to. [para. 37].

United Freight Services Ltd. v. Therriault et al., [2006] A.R. Uned. 541 (C.A.), refd to. [para. 38].

F.E.M. v. P.M. (2006), 380 A.R. 264; 363 W.A.C. 264 (C.A.), refd to. [para. 38].

Vysek v. Nova Gas International Ltd. et al. (2001), 293 A.R. 346; 257 W.A.C. 346 (C.A.), refd to. [para. 43].

Counsel:

Murray L. Engelking (Engelking Wood), for the plaintiff/respondent;

Robert J. MacKay and Alexander A. Mosaico (Snyder & Associates LLP), for the defendants/applicants.

This case was heard by way of written submissions on November 5, 2010, by Lee, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on November 10, 2010.