Jacobi v. Board of Education of Aqueduct Roman Catholic Separate School District No. 374 et al., (1994) 153 A.R. 241 (QB)

• Judge: O'Leary, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 11, 1994
• Citations: (1994), 153 A.R. 241 (QB)

Jacobi v. Aqueduct R.C. Sep. Sch. Bd. (1994), 153 A.R. 241 (QB)

MLB headnote and full text

Ken Jacobi, Mary Jacobi and Wyatt Jacobi, Marshall Jacobi, Lindsay Jacobi, Clinton Jacobi and Lesley Jacobi, infants, by their next friend Ken Jacobi (plaintiffs) v. The County of Newell No. 4, The County of Newell No. 4 Board of Education, The Aqueduct Roman Catholic Separate School District 374 and The Board of Trustees of The Aqueduct Roman Catholic Separate School District No. 374 (defendants)

(Action No. 9308-00122)

Indexed As: Jacobi v. Board of Education of Aqueduct Roman Catholic Separate School District No. 374 et al.

Alberta Court of Queen's Bench

Judicial District of Medicine Hat

O'Leary, J.

April 11, 1994.

Summary:

The plaintiffs succeeded at trial against the defendants the Aqueduct Roman Catholic Separate School District 374 and the Board of Trustees of the Aqueduct Roman Catholic Separate School District (reported 150 A.R. 34). The plaintiffs requested costs on a solici­tor and client basis or, alternatively, on a scale substantially higher than the tariff.

The Alberta Court of Queen's Bench awarded costs against the unsuccessful defendants to be taxed on double Column 6 of Schedule "C", plus a gross sum of $20,000 and reasonable disbursements.

Practice - Topic 7029.6

Costs - Party and party costs - Entitle­ment to - Successful party - Exceptions - Legal expense paid by third party - The plaintiffs succeeded at trial against several of the defendants - The unsuccessful defendants disputed the plaintiffs' entitle­ment to costs because a third party had agreed to indemnify the plaintiffs against all liability arising out of the litigation - The Alberta Court of Queen's Bench rejected the defendants' argument - The court stated that "For a successful party to be disentitled to party-and-party costs there must be an agree­ment, between the successful party and his solicitor or between the solicitor and the indemnitor, that in no circumstances will the party be liable for costs" - See para­graphs 19 to 25.

Practice - Topic 7062

Costs - Party and party costs - Counsel fees - Entitlement - The successful plain­tiffs were represented by two lawyers - In awarding costs, the Alberta Court of Queen's Bench held that only one counsel fee would be taxable, but the reasonable travelling expenses of both counsel was recoverable as a disbursement - See para­graph 40.

Practice - Topic 7110.2

Costs - Party and party costs - Special orders - Increase in scale of costs - Writ­ten argument - The plaintiffs successfully argued that provisions in the School Act which permitted operation of a separate school district which did not offer a "denominational" program of education were unconstitutional - The Alberta Court of Queen's Bench noted that the argument required ingenuity and a great deal of research - The court awarded costs to be taxed on double Column 6 of Schedule "C" plus reasonable disbursements, and a gross sum of $20,000 in recognition of the research and written argument.

Practice - Topic 7116

Costs - Party and party costs - Special orders - Gross or lump sum in addition to party and party costs - The plaintiffs, a Roman Catholic family, challenged provi­sions in the School Act which permitted operation of a separ­ate school district which did not offer a "de­nominational" program of edu­cation - Their personal lives suffered as a result - The defendants had no reason to suspect that their acts were unconstitu­tional - There was no bad faith and costs would be paid from tax revenue from the district's small Roman Catholic population - The Alberta Court of Queen's Bench refused to award solici­tor and client costs, but awarded costs to be taxed on double Col­umn 6 of Schedule "C", plus a gross sum of $20,000 and reasonable disburse­ments.

Practice - Topic 7137

Costs - Party and party costs - Disburse­ments - Travelling expenses - Counsel - [See Practice - Topic 7062 ].

Practice - Topic 7458

Costs - Solicitor and client costs - Enti­tlement to - Rare and exceptional cases - The plaintiffs, a Roman Catholic family, successfully challenged provisions in the School Act which permitted operation of a separate school district which did not offer a "denominational" program of education - Their personal lives suffered as a result - The Alberta Court of Queen's Bench re-fused to award solicitor and client costs where the defendants did not act in bad faith and had no reason to suspect that their acts were unconstitutional and costs would be paid from tax revenue from the district's small Roman Catholic population - Nor were solicitor and client costs jus­tified on the basis of complexity or impor­tance of the case to the general public.

Cases Noticed:

Jacobi v. Board of Education of Aqueduct Roman Catholic Separate School District No. 374 (1994), 150 A.R. 34 (Q.B.), refd to. [paras. 6, 33].

Finlay v. Canada, [1986] 2 S.C.R. 607; 71 N.R. 338; 33 D.L.R.(4th) 321, refd to. [para. 10].

Borowski v. Canada (Minister of Justice) et al., [1981] 2 S.C.R. 575; 39 N.R. 331; 12 Sask.R. 420; [1982] 1 W.W.R. 97; 24 C.R.(3d) 352; 24 C.P.C. 62; 64 C.C.C.(2d) 97; 130 D.L.R.(3d) 588, refd to. [para. 10].

Jacobi v. Newell No. 4 (County) et al. (1992), 136 A.R. 165 (Q.B.), refd to. [para. 10].

Wenden v. Trikha et al. (1992), 124 A.R. 1; 6 C.P.C.(3d) 15 (Q.B.), refd to. [paras. 20, 23].

Brady (W.H.) Co. v. Letraset Canada Ltd., [1991] 2 F.C. 226; 122 N.R. 161; 34 C.P.R.(3d) 433 (F.C.A.), refd to. [paras. 21, 23].

Adams v. London Improved Motor Coach Builders Ltd., [1921] 1 K.B. 495; [1920] All E.R. Rep. 340 (C.A.), refd to. [para. 22].

Huff and Donnelly v. Price et al. (1993), 23 B.C.A.C. 76; 39 W.A.C. 76; 76 B.C.L.R.(2d) 212 (C.A.), refd to. [para. 23].

Jackson and Parkview Holdings Ltd. v. Trimac Industries Ltd. et al. (1993), 138 A.R. 161 (Q.B.), refd to. [paras. 27, 30].

Reese et al. v. Alberta (Ministry of For­estry, Lands and Wildlife) et al. (1992), 133 A.R. 127; 5 Alta. L.R.(3d) 40 (Q.B.), refd to. [para. 27].

McCarthy v. Calgary Roman Catholic Separate School District No. 1 (No. 1), [1980] 5 W.W.R. 524; 30 A.R. 208 (Q.B.), refd to. [para. 28].

Foulis v. Robinson (1978), 92 D.L.R.(3d) 134 (Ont. C.A.), refd to. [para. 29].

Canadian Deposit Insurance Corp. v. Cana­dian Commercial Bank (1987), 76 A.R. 271; 50 Alta. L.R.(2d) 1 (Q.B.), refd to. [para. 30].

Statutes Noticed:

Alberta Bill of Rights, R.S.A. 1980, c. A-16, generally [para. 5].

Charter of Rights and Freedoms, 1982, generally [para. 32], sect. 2(a), sect. 15(1) [para. 5].

Judicature Act, R.S.A. 1980, c. J-1, sect. 25 [para. 3].

Rules of Court (Alta.), Schedule C, col­umn 2 [para. 15], column 6 [paras. 15, 40].

School Act, S.A. 1988, c. S-3.1, generally [paras. 2 et seq.].

Authors and Works Noticed:

Orkin, Mark M., The Law of Costs (2nd Ed. 1987), p. 259 [para. 11].

Counsel:

G.D. Chipeur, for the plaintiffs;

K.W. Lutes, Q.C., for the defendants, The Aqueduct Roman Catholic Separate School District No. 374 and Aqueduct Board of Trustees;

M. Unsworth, for the Attorney General of Alberta;

R.J. Shaw, for the defendants, The County of Newell No. 4 and the County of Newell No. 4 Board of Education.

This action was heard by O'Leary, J., of the Alberta Court of Queen's Bench, Judicial District of Medicine Hat, who delivered the following judgment on April 11, 1994.