Equitable Trust Co. v. Lougheed Block Inc. et al.,

• Judge: Berger,Hunt,Nation
• Neutral Citation: 2015 ABCA 37
• Subject Matter: PRACTICE
• Citation: 2015 ABCA 37,(2015), 593 A.R. 388,593 AR 388,(2015), 593 AR 388,593 A.R. 388
• Date: 29 January 2015
• Court: Court of Appeal (Alberta)

Equitable Trust Co. v. Lougheed Block Inc. (2015), 593 A.R. 388; 637 W.A.C. 388 (CA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. FE.002

The Equitable Trust Company (respondent/plaintiff) v. The Lougheed Block Inc., Neil John Richardson and Hugh Daryl Richardson (appellants/defendants) and Krayzel Corporation and Heritage Capital Corporation (not parties to the appeal/subsequent encumbrancers)

(1201-0249-AC)

The Equitable Trust Company (respondent/plaintiff) v. Heritage Capital Corporation (appellant/subsequent encumbrancer) and Neil John Richardson, The Lougheed Block Inc. and Hugh Daryle Richardson (not parties to the appeal/defendants) and Krayzel Corporation (not a party to the appeal/subsequent encumbrancer)

(1201-0253-AC)

Krayzel Corporation (appellant/subsequent encumbrancer) v. The Equitable Trust Company (respondent/plaintiff) and The Lougheed Block Inc., Neil John Richardson, Hugh Daryl Richardson and Heritage Property Corporation (not parties to the appeal/defendants) and Heritage Capital Corporation (not a party to the appeal/subsequent encumbrancer)

(1201-0254-AC; 2015 ABCA 37)

Indexed As: Equitable Trust Co. v. Lougheed Block Inc. et al.

Alberta Court of Appeal

Hunt and Berger, JJ.A., and Nation, J.(ad hoc)

January 29, 2015.

Summary:

The Alberta Court of Appeal provided directions with respect to two outstanding costs issues relative to its reasons for judgment reported at (2014), 577 A.R. 179; 613 W.A.C. 179.

Practice - Topic 7249.1

Costs - Party and party costs - Offers to settle - Where multiple parties (incl. non-severable offers) - The respondent lender ("Equitable") was awarded costs with respect to this appeal - The appeal was about whether the 25 percent interest rate in two mortgage renewal agreements between Equitable and the appellant borrower violated s. 8 of the Interest Act - Equitable's counsel prepared a draft form of judgment which included costs provisions - The appellant "Krayzel", a subsequent encumbrancer, argued that the calculation of the costs award against it was flawed because the offer to settle made by Equitable was not capable of being independently accepted by Krayzel - Krayzel further submitted that the costs should be distributed equally amongst the unsuccessful appellants - The Alberta Court of Appeal revised the draft form of judgment - Krayzel was in no position to accept an offer contingent on the acquiescence of others - Equitable crafted its offers to settle with multiple conditions precedent and thereby incurred the risk that the contingencies might not be achieved - The offer to Krayzel was not a true offer of compromise that Krayzel could unilaterally accept and act upon - However, Krayzel was not entitled to a limitation of its exposure to one-third of the total of costs to be taxed - The Court rejected Krayzel's suggestion that "as second place secure creditor, [it] ought to be the last source of recovery for Equitable's costs."

Statutes Noticed:

Rules of Court (Alta.) (2010), rule 4.29(1), rule 4.29(4)(e) [para. 3].

Counsel:

F. Price, Q.C., and D. Young, for the respondent/plaintiff;

J.N. Thom, Q.C., for the appellants/defendants;

J.E. Sharpe, for the appellant, Heritage Capital Corporation;

G.S. Watson, for the appellant, Krayzel Corp.

This application for directions regarding costs was heard by way of written submissions only, before Hunt and Berger, JJ.A., and Nation, J.(ad hoc), of the Alberta Court of Appeal, who delivered the following memorandum of judgment, filed at Calgary, Alberta, on January 29, 2015.