Laforce v. Kaye et al., (2007) 430 A.R. 280 (PC)

• Judge: Skitsko, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: August 28, 2007
• Citations: (2007), 430 A.R. 280 (PC);2007 ABPC 245

Laforce v. Kaye (2007), 430 A.R. 280 (PC)

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. NO.020

Dennis Laforce, operating as Precision Masonry and Precision Masonry (plaintiffs/defendants by counterclaim) v. Alwyn Kaye and Janice Nunweiler (defendants/plaintiffs by counterclaim)

(P0390301449; 2007 ABPC 245)

Indexed As: Laforce v. Kaye et al.

Alberta Provincial Court

Skitsko, P.C.J.

August 28, 2007.

Summary:

The plaintiff's claim was for $3,767.28. In addition to denying liability, the defendants counterclaimed for $25,000, the statutory maximum for the Provincial Court. The plaintiff's claim was dismissed and the counterclaim was allowed in the full amount. At issue was costs. The defendants sought an award for legal fees calculated at 4% of the judgment for each one half day of trial ($18,750) and $49,717.43 for the "taxable fees" of the seven expert witnesses they had engaged in prosecuting the counterclaim.

The Alberta Provincial Court awarded the defendants costs of $5,000 (20% of the judgment) and $7,006.30 for the expert witnesses (15% of the net expert fees and disbursements).

Courts - Topic 8409

Provincial courts - Alberta - Provincial Court - Jurisdiction - Costs - [See Practice - Topic 7020.1 and Practice - Topic 7085 ].

Practice - Topic 7020.1

Costs - Party and party costs - Entitlement to party and party costs - Successful party - Quantum - The plaintiff's claim was for $3,767.28 - In addition to denying liability, the defendants counterclaimed for $25,000, the statutory maximum for the Provincial Court - The plaintiff's claim was dismissed and the counterclaim was allowed in the full amount - The court noted that the award did not equate to the actual sum that was required to reconstruct the damaged masonry wall that was the subject of the action, but the defendants had chosen to remain in the venue rather than transferring the matter to the Court of Queen's Bench - The defendants sought an award of $18,750 for legal fees, calculated at 4% of the judgment for each one half day of trial - The Alberta Provincial Court awarded the defendants costs of $5,000 - Generally, costs in the Provincial Court were awarded on the basis of 10% of the judgment granted when counsel appeared for the successful party and 5% otherwise - This was subject to judicial discretion - The defendants' claim was not within the reasonable range of costs in the Provincial Court Civil Division - Having regard to the time of trial and the complexity of the counterclaim, a global amount of 20% of the judgment was appropriate - See paragraphs 21 to 26.

Practice - Topic 7031.1

Costs - Party and party costs - Entitlement to party and party costs - Counterclaims - [See Practice - Topic 7020.1 and Practice - Topic 7085 ].

Practice - Topic 7085

Costs - Party and party costs - Witness fees and costs of preparation for trial or appeal - Expert witness fees - The plaintiff's claim was for $3,767.28 - In addition to denying liability, the defendants counterclaimed for $25,000, the statutory maximum for the Provincial Court - The plaintiff's claim was dismissed and the counterclaim was allowed in the full amount - The court noted that the award did not equate to the actual sum that was required to reconstruct the damaged masonry wall that was the subject of the action, but the defendants had chosen to remain in the venue rather than transferring the matter to the Court of Queen's Bench - The defendants sought $49,717.43 for the "taxable fees" of the seven expert witnesses they had engaged in prosecuting the counterclaim - The Alberta Provincial Court awarded the defendants costs for the expert witnesses of $7,006.30 (15% of the net expert fees and disbursements) - Generally, a flat fee of $150 for expert witnesses was awarded in the Provincial Court - This was subject to judicial discretion - However, litigants in the Provincial Court Civil Division could not treat expert witness invoices as taxable disbursements - This was a residential project whose initial value was less than $20,000 - Using seven expert witnesses was excessive - The defendants' tactical decision could not be protected nor validated through a full indemnity award - A pragmatic approach was more appropriate - See paragraphs 17 to 20 and 27 to 32.

Cases Noticed:

Deyell v. Siroccos Hair Co. (1999), 245 A.R. 302; 1999 ABQB 592, refd to. [para. 5].

Wolf Willow Shopping Centre Ltd. v. Inter-Hair Group et al., [2003] A.R. Uned. 213; 2003 ABPC 70, refd to. [para. 7].

Thompson v. Birkenbach Holdings Ltd. (1997), 208 A.R. 161 (Prov. Ct.), refd to. [para. 10].

Davis v. 850015 Alberta Ltd. et al. (2003), 335 A.R. 172 (Prov. Ct.), refd to. [para. 11].

T.M.M. v. P.C. (2002), 311 A.R. 301; 2002 ABQB 416, refd to. [para. 16].

Family and Children's Services of Annapolis County v. C. (1983), 34 C.P.C. 57 (N.S. Co. Ct.), affd. (1983), 62 N.S.R.(2d) 365; 136 A.P.R. 365; 39 C.P.C. 168 (C.A.), refd to. [para. 16].

Nova Scotia (Minister of Community Services) v. Elliott et al. (1995), 141 N.S.R.(2d) 346; 403 A.P.R. 346 (S.C.), refd to. [para. 16].

Chapman Management & Consulting Services Ltd. v. Kernic Equipment Sales Ltd. (2006), 400 A.R. 1; 2006 ABQB 227, refd to. [para. 17].

Dargis Land & Cattle Co. v. Butte Grain Merchants Ltd. et al., [2006] A.R. Uned. 121 (Prov. Ct.), refd to. [para. 24].

Kiriak v. Ewasiuk (Clarence H.) Professional Corp., 2001 ABQB 1131, refd to. [para. 29].

Angelstad v. Frederick's Estate (1989), 80 Sask.R. 274 (Q.B.), refd to. [para. 30].

Hinton Enterprises Ltd. v. Tucker Investments Ltd. et al. (1985), 43 Sask.R. 300 (Q.B.), refd to. [para. 30].

Counsel:

Donald Savich (Savich Law Office), for the plaintiffs/defendants by counterclaim;

Mark Kirwin (Kirwin LLP), for the defendants/plaintiffs by counterclaim.

This matter was heard by Skitsko, P.C.J., of the Alberta Provincial Court, who delivered the following reasons for decision on August 28, 2007.