Dallin v. Montgomery et al., 2010 ABQB 587

• Judge: Lee, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: September 14, 2010
• Citations: 2010 ABQB 587;(2010), 498 A.R. 287 (QB)

Dallin v. Montgomery (2010), 498 A.R. 287 (QB)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. SE.080

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 587)

Indexed As: Dallin v. Montgomery et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Lee, J.

September 14, 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 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.

Practice - Topic 7453

Costs - Solicitor and client costs - Entitlement to - Delaying tactics and unduly prolonging proceedings - 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 - The trial judge 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 - Dallin submitted that this was an appropriate case in which to award costs on a full indemnity basis, as there was evidence that Montgomery took steps which "hindered, delayed or confused the litigation", required Dallin to prove facts that should have been admitted, was "guilty of positive misconduct, and attempted to defeat justice" - 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 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 - There was no finding that Montgomery gave false testimony, or attempted to induce false testimony to deceive the court - The defendants had not forced Dallin to "prove any facts that were not originally in issue, did not prolong the trial, ask for any unnecessary adjournments, conceal material documents, nor fail to produce material documents in a timely fashion" - There had been no finding of misrepresentation, deceit, nor intimidation on the part of the defendants - The defendants' actions fell short of the type of conduct which would support solicitor-client costs.

Cases Noticed:

Jackson and Parkview Holdings Ltd. v. Trimac Industries Ltd. et al. (1993), 138 A.R. 161 (Q.B.), varied (1994), 155 A.R. 42; 73 W.A.C. 42 (C.A.), refd to. [para. 2].

Reese et al. v. Alberta (Minister of Forestry, Lands and Wildlife) et al. (1992), 133 A.R. 127 (Q.B.), refd to. [para. 2].

Foulis v. Robinson (1978), 21 O.R.(2d) 769 (C.A.), refd to. [para. 2].

Max Sonnenberg Inc. v. Stewart, Smith (Can.) Ltd. (1986), 48 Alta. L.R.(2d) 367 (Q.B.), refd to. [para. 2].

Dusik v. Newton (1984), 51 B.C.L.R. 217 (S.C.), varied (1985), 62 B.C.L.R. 1 (C.A.), refd to. [para. 2].

Davis et al. v. Davis et al. (1981), 9 Man.R.(2d) 236 (Q.B.), refd to. [para. 2].

Kepic v. Tecumseh Road Builders et al. (1987), 23 O.A.C. 72 (C.A.), refd to. [para. 2].

Sturrock et al. v. Ancona Petroleums Ltd. et al. (1990), 111 A.R. 86 (Q.B.), refd to. [para. 2].

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

D.H. v. R.A., 1999 ABQB 825, refd to. [para. 2].

College of Physicians and Surgeons (Alta.) v. J.H. et al. (2009), 468 A.R. 101; 2009 ABQB 48, refd to. [para. 2].

Sidorsky et al. v. CFCN Communications Ltd. et al. (1997), 206 A.R. 382; 156 W.A.C. 382 (C.A.), additional reasons (1998), 216 A.R. 151; 175 W.A.C. 151; 1998 ABCA 127, refd to. [para. 2].

Polar Ice Express Inc. v. Arctic Glacier Inc. (2009), 446 A.R. 295; 442 W.A.C. 295; 2009 ABCA 20, refd to. [para. 2].

Olson v. New Home Certification Program of Alberta (1986), 69 A.R. 356 (Q.B.), refd to. [para. 2].

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. 2].

Walsh v. Mobil Oil Canada et al. (2008), 440 A.R. 199; 438 W.A.C. 199; 94 Alta. L.R.(4th) 209; 2008 ABCA 268, refd to. [para. 2].

Counsel:

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

Robert MacKay and Alexander Mosaico (Snyder & Company), for the defendants.

This case was heard by Lee, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on costs on September 14, 2010.