Franchuk v. Schick, 2015 ABQB 21

• Judge: Lee, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 09, 2015
• Citations: 2015 ABQB 21;[2015] A.R. TBEd. MR.064

Franchuk v. Schick, [2015] A.R. TBEd. MR.064

MLB being edited

Currently being edited for A.R. - judgment temporarily in rough form.

Temp. Cite: [2015] A.R. TBEd. MR.064

Mike Franchuk (plaintiff) v. Mary Schick (defendant)

(0603 07660; 2015 ABQB 21)

Indexed As: Franchuk v. Schick

Alberta Court of Queen's Bench

Judicial District of Edmonton

Lee, J.

January 9, 2015.

Summary:

The plaintiff was one of 11 directors of the Lakeland Rural Electric Association (REA). The defendant ran the REA's two person office. In 2004, the defendant told the REA president that the plaintiff sexually harassed her with inappropriate comments. At the president's request, the defendant sent a formal written complaint to the board of directors. The board, having no formal sexual harassment policy, determined that sexual harassment was not established in this "he said, she said" scenario. The board also voted down the plaintiff's motion that the defendant be fired or demoted for her failure to properly do her job. The plaintiff sued for damages for defamation. The defendant pleaded truth and qualified privilege.

The Alberta Court of Queen's Bench, in a judgment reported (2014), 592 A.R. 106, dismissed the plaintiff's action. It could not be determined whether the statements were true or not. However, qualified privilege attached to the occasion of an employee, at her superior's request, forwarding a formal complaint of sexual harassment to the board for investigation. Although it could not be determined whether the allegations were true, the court was satisfied that the defendant honestly believed them to be true and that the allegations were made without malice (not in retaliation for the plaintiff's attempt to get her fired). The court provisionally assessed $10,000 general damages. The parties could not agree on costs.

The Alberta Court of Queen's Bench awarded the defendant $6,700 costs under Column 1 of Schedule C. The court declined to award double costs based on an unaccepted $1.00 settlement that was not genuine, but made primarily to trigger double costs sanctions.

Practice - Topic 7003

Costs - Party and party costs - General principles and definitions - Amount involved - [See Practice - Topic 7242.1 ].

Practice - Topic 7241

Costs - Party and party costs - Offers to settle - General - What constitutes and validity - [See Practice - Topic 7242.1 ].

Practice - Topic 7242.1

Costs - Party and party costs - Offers to settle - Grounds for denying double costs - The plaintiff's defamation claim against the defendant was dismissed - Although the plaintiff established the elements of defamation, the claim was defeated by qualified privilege and the lack of malice - The original claim was for $600,000, but at trial the plaintiff sought only $10,000, as the action was primarily to clear his name - The defendant sought double costs based on an unaccepted offer to settle the action for $1.00 - The defendant's draft bill of costs totalled $36,000 based on Column 4 of Schedule C (based on the $600,000 claim) - The Alberta Court of Queen's Bench determined that where it was clear that the plaintiff sought only $10,000 in damages, costs were based on Column 1 rather than Column 4 - The defendant was denied double costs, as "An offer to settle that does not realistically reflect the relative merits of the parties' position at the time it is made is not a genuine offer, as it is made without any reasonable expectation that it will be accepted, and it is made essentially for the purpose of invoking the double cost sanction and to create a low risk or no risk litigation outcome." - The defendant's settlement offer was not genuine, as there was no reasonable expectation that it would be accepted and it was made primarily to invoke the double costs sanction - The court awarded the defendant $6,700 costs under Column 1 for the two day trial.

Cases Noticed:

Elgert v. Home Hardware Stores Ltd. et al. (2011), 510 A.R. 1; 527 W.A.C. 1; 2011 ABCA 112, refd to. [para. 11].

Gouin v. White et al. (2013), 564 A.R. 60; 2013 ABQB 332, refd to. [para. 11].

Solis et al. v. del Rosario et al., [2014] A.R. TBEd. DE.048; 2014 ABQB 651, refd to. [para. 16].

Allen v. University Hospitals Board et al. (2006), 384 A.R. 23; 367 W.A.C. 23; 2006 ABCA 101, refd to. [para. 16].

Counsel:

Nestor Makuch (Wheatley Sadownik), for the defendant;

Byron W. Nelson (McGuigan Nelson LLP), for the defendant.

This matter was heard before Lee, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on January 9, 2015.