J.H.O. Holdings & Management Ltd. et al. v. Schafer, (1997) 204 A.R. 11 (QBM)

• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 10, 1997
• Citations: (1997), 204 A.R. 11 (QBM)

JHO Holdings & Mgt. Ltd. v. Schafer (1997), 204 A.R. 11 (QBM)

MLB headnote and full text

Temp. Cite: [1997] A.R. TBEd. AP.069

J.H.O. Holdings & Management Ltd. and Esther Elaine Odishaw (plaintiffs) v. Wayne Malcolm Schafer (defendant/plaintiff by counterclaim) and J.H.O. Holdings & Management Ltd., James H. Odishaw Professional Corporation, J.H.O. Holdings Ltd., and James H. Odishaw, operating as Odishaw & Odishaw, Barristers and Solicitors (defendants by counterclaim)

(Action No. 9603-20251)

Indexed As: J.H.O. Holdings & Management Ltd. et al. v. Schafer

Alberta Court of Queen's Bench

Judicial District of Edmonton

Funduk, Master in Chambers

April 10, 1997.

Summary:

The plaintiffs sued Schafer for amounts owing under a loan. Schafer invoked equi­table set-off and counterclaimed. The plain­tiffs applied for summary judgment.

A Master of the Alberta Court of Queen's Bench allowed the application, granted summary judgment and stated that his deci­sion had the effect of severing the counter­claim.

Practice - Topic 1843

Pleadings - Counterclaim and set-off - Set-off - Circumstances when set-off can or cannot be claimed - Schafer was an associ­ate in "the law firm of Odishaw & Odishaw" - He got a $40,000 loan from a company called J.H.O. Holdings whose principals included the Odishaws - Schafer defaulted - J.H.O. Holdings sued and applied for summary judgment - Schafer invoked equitable set-off and counter­claimed for damages resulting from his alleged summary dismissal by the law firm without cause - A Master of the Alberta Court of Queen's Bench granted summary judgment - The Master rejected the defence of equitable set-off because Schafer had entered into two different contracts, one of employment and one of loan, with two different parties, the law firm and J.H.O. Holdings respectively - See paragraphs 1 to 31.

Practice - Topic 7452

Costs - Solicitor and client costs - Enti­tlement to solicitor and client costs - Neglect or misconduct - A hearing on an application was adjourned because the respondent served an affidavit at the last moment - The applicant sought solicitor and client costs as a result - A Master of the Alberta Court of Queen's Bench rejected the request and held: "Apart from contract, the case law says that solicitor-client costs should be awarded only where the conduct of the litigant is reprehensible. It may be aggravating that a litigant who has had a lot of time to deliver an affidavit waits until the last moment to do so. How­ever, the casual approach does not meet the test for solicitor-client costs although it does call for a higher cost." - See para­graphs 37 to 41.

Cases Noticed:

Abacus Cities Ltd. v. Aboussafy (1981), 29 A.R. 607 (C.A.) refd to. [para. 20].

Telford v. Holt, [1987] 2 S.C.R. 193; 78 N.R. 321; 81 A.R. 385; 54 Alta. L.R.(2d) 193; 21 C.P.C.(2d) 1; 46 R.P.R. 234; 41 D.L.R.(4th) 385; 37 B.L.R. 241, refd to. [para. 20].

Creditel of Canada v. Steel-Craft Door Products Ltd. (1996), 191 A.R. 380; 44 Alta. L.R.(3d) 335 (Q.B. Master), refd to. [para. 20].

National Cabinet Lock of Canada Inc. v. Steel-Craft Door Products Ltd. - see Creditel of Canada v. Steel-Craft Door Products Ltd.

Coba Industries Ltd. v. Millies Holdings (Can.) Ltd., [1985] 6 W.W.R. 14 (B.C.C.A.), dist. [para. 21].

Independent Laundry Rentals Ltd. v. Fernwood Construction of Canada Ltd. (1985), 66 A.R. 374 (Q.B. Master), dist. [para. 21].

Smoky River Coal Ltd. v. Reeves (1985), 70 A.R. 104; 41 Alta. L.R.(2d) 370 (Q.B. Master), dist. [para. 21].

Royal Bank of Canada v. Brattberg (1987), 79 A.R. 166 (C.A.), leave to appeal refused (1987), 82 N.R. 393; 82 A.R. 392 (S.C.C.), refd to. [para. 41].

Counsel:

B.A. Vail (Field Atkinson Perraton), for the plaintiffs;

T.R. Wood (Bishop & McKenzie), for the defendants.

This application was heard by Funduk, Master in Chambers, of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on April 10, 1997.