Markdale Ltd. v. Ducharme, (1998) 238 A.R. 98 (QB)

• Judge: Bielby, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: September 17, 1998
• Citations: (1998), 238 A.R. 98 (QB)

Markdale Ltd. v. Ducharme (1998), 238 A.R. 98 (QB)

MLB headnote and full text

Temp. Cite: [1998] A.R. TBEd. DE.032

Markdale Limited (plaintiff) v. Leonce Ducharme (defendant)

(Action No. 9503-15929)

Indexed As: Markdale Ltd. v. Ducharme

Alberta Court of Queen's Bench

Judicial District of Edmonton

Bielby, J.

September 17, 1998.

Summary:

A tenant operated a dryclean­ing business. Her landlord gave notice of termination for nonpayment of rent. The landlord also imposed a landlord's distress, which resulted in the tenant giving a bailee's undertaking for her drycleaning equipment. The landlord sued the tenant for monies and damages allegedly due and owing under a prima facie expired lease. The tenant coun­terclaimed for damages for wrongful termi­nation of lease and distress with resulting costs for locating new premises and loss of business.

The Alberta Court of Queen's Bench, in a decision reported at 235 A.R. 283, awarded the landlord $3,423 for rent arrears, plus pre­judgment interest. The court awarded the tenant $10,000 general damages for wrongful distress. The parties made submissions regarding costs.

The Alberta Court of Queen's Bench awarded the tenant $20,000 in costs against the landlord, and ordered that the landlord's solicitor would be jointly and severally liable for $10,000 of the cost award in his personal capacity.

Barristers and Solicitors - Topic 842

Duty to court - Liability for costs - For improper conduct - The plaintiff landlord sued the defendant for $16,000 in rent arrears - The defend­ant, who operated a drycleaning busin­ess, counter­claimed for wrongful distress of over $100,000 worth of equipment - After a 4.5 day trial, the trial judge awarded the defend­ant $10,000 and the plaintiff $3,423 - The plaintiff tortiously attempted to block removal of the defendant's equipment contrary to court orders and interfered with her business oper­ations - Her untaxed legal bill exceeded $77,000 - The Alberta Court of Queen's Bench awarded the defendant $20,000 costs and ordered that the plain­tiff's solicitor would be jointly and sev­erally liable for $10,000 of the cost award in his personal capacity - The solicitor intentionally breached court orders, pro­longed the proceedings, and made unsub­stantiated allegations of impropriety against the defendant's counsel - See paragraphs 63 to 76.

Company Law - Topic 310

Nature of corporations - Lifting the cor­porate veil - General - The plaintiff land­lord sued the defendant for $16,000 in rent arrears - The defend­ant, who operated a drycleaning busin­ess, counter­claimed for wrongful distress of over $100,000 worth of equipment - The trial judge held that the plaintiff (through its principal) tortiously attempted to block removal of the defendant's equipment contrary to court orders and interfered with her business oper­ations - The Alberta Court of Queen's Bench awarded the defendant $20,000 costs, but denied her request that the plaintiff's principal (a nonparty) be jointly and severally liable for any portion of the costs award - See paragraphs 52 to 62.

Practice - Topic 7003

Costs - Party and party costs - General and definitions - Amount involved - The plaintiff landlord sued for nonpayment of rent - The defendant, who operated a drycleaning busin­ess, counter­claimed for damages for wrongful distress of her equipment, worth over $100,000 - The trial judge awarded the defendant $10,000 and the landlord $3,423 - The Alberta Court of Queen's Bench awarded costs to the defendant - The proper column for costs was deter­mined by adding the dollar amount claimed in the state­ment of claim plus the value of the successful counter­claim, except where it duplicated steps taken in the main action - The amount claimed by the plain­tiff was not the value of the seized goods and the dollar amount claimed in the statement of claim because, at best, the plaintiff could have recovered only the amount of its claim, to be col­lected from the sale of the seized goods with any surplus being returned to the defendant - See para­graphs 35 to 40.

Practice - Topic 7117

Costs - Party and party costs - Special orders - Lump sum in lieu of taxed costs - In awarding costs, the Alberta Court of Queen's Bench took into account the significant animosity between a plaintiff and defen­dant - The court awarded lump sum costs where it would be counterproductive to create a further opportunity for the parties to liti­gate by requiring costs to be taxed - See para­graphs 43 to 44.

Practice - Topic 7117

Costs - Party and party costs - Special orders - Lump sum in lieu of taxed costs - The plaintiff landlord sued the defendant for $16,000 in rent arrears - The defend­ant, who operated a drycleaning busin­ess, counter­claimed for wrongful distress of over $100,000 worth of equipment - After a 4.5 day trial, the trial judge awarded the defend­ant $10,000 and the plaintiff $3,423 - The plaintiff tortiously attempted to block removal of the defendant's equip­ment contrary to court orders and inter­fered with her business oper­ations - The defendant had made a formal offer to settle over two years before the trial, which she significantly bettered at trial - Her untaxed legal bill exceeded $77,000 - She had already been awarded $1,000 costs for pretrial proce­dures - The Alberta Court of Queen's Bench awarded the defendant $20,000 lump sum costs.

Practice - Topic 7243

Costs - Party and party costs - Offers to settle - Effect of failure to accept - [See second Practice - Topic 7117 ].

Practice - Topic 7451

Costs - Solicitor and client costs - Enti­tlement - The plaintiff landlord sued the defendant for $16,000 in rent arrears - The defend­ant, who operated a drycleaning busin­ess, counter­claimed for wrongful distress of over $100,000 worth of equip­ment - After a 4.5 day trial, the trial judge awarded the plaintiff $3,423 and the defend­ant $10,000 - The plaintiff tortiously attempted to block removal of the equipment contrary to court orders and interfered with the defendant's business oper­ations - The Alberta Court of Queen's Bench awarded the defendant $20,000 lump sum costs - The court held that it could not award sol­ici­tor/client costs based on the same con­duct that resulted in the dam­ages under the counter­claim, as that would result in double indemnity - Fur­ther, the court lacked full informa­tion about the work done and dis­burse­ments incurred and the defendant had already been awarded $1,000 costs for pretrial pro­cedures - See paragraphs 24 to 35.

Practice - Topic 7765

Costs - Special orders - Costs against nonparty - [See Company Law - Topic 310 ].

Cases Noticed:

Carr & Co. v. Markdale Ltd. (1996), 197 A.R. 6; 46 Alta. L.R.(3d) 324 (Q.B.), refd to. [para. 8].

Jackson and Parkview Holdings Ltd. v. Trimac Industries Ltd. et al. (1993), 138 A.R. 161 (Q.B.), refd to. [para. 28].

Shillelagh Cabarets Ltd. v. Celona, [1980] 5 W.W.R. 553 (B.C.S.C.), refd to. [para. 38].

Industrial Acceptance Corp. v. Beaupre (1956), 18 W.W.R.(N.S.) 685 (Alta. C.A.), refd to. [para. 39].

McCain Foods Ltd. v. Grand Falls Indus­tries Ltd. et al. (1990), 106 N.B.R.(2d) 296; 265 A.P.R. 296; 67 D.L.R.(4th) 29 (T.D.), refd to. [para. 39].

931473 Ontario Ltd. v. Coldwell Banker Canada Inc. (1992), 5 C.P.C.(3d) 271 (Ont. Gen. Div.), refd to. [para. 56].

358427 Alberta Inc. v. Monenco Advisory Services Ltd. et al. (1998), 211 A.R. 386; 57 Alta. L.R.(3d) 1 (Q.B.), refd to. [para. 56].

20th Century Television and Appliances Ltd. v. Midnapore Property Investments Ltd. et al. (1991), 120 A.R. 114; 8 W.A.C. 114; 85 Alta. L.R.(2d) 114 (C.A.), refd to. [para. 56].

269335 Alberta Ltd. v. Starlite Investments Ltd. (1987), 18 C.P.C.(2d) 161 (Alta. Q.B.), refd to. [para. 56].

Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161; 108 D.L.R.(4th) 193, refd to. [para. 67].

S.E. v. Law Society of Alberta, [1992] A.J. No. 718 (C.A.), refd to. [para. 69].

Boyko v. Sitter (1964), 50 W.W.R.(N.S.) 616 (Sask. C.A.), refd to. [para. 71].

Kirkeby v. Waddell (1996), 183 A.R. 350 (Q.B.), refd to. [para. 72].

Statutes Noticed:

Rules of Court (Alta.), rule 605(5) [para. 37].

Counsel:

James K. Arends, for the plaintiff;

Wendy A. Danson, for the defend­ant.

This action was heard by Bielby, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on costs on September 17, 1998.