McAteer et al. v. Devoncroft Developments Ltd. et al.,

• Judge: Rooke, J.
• Neutral Citation: 2003 ABQB 425
• Citation: (2003), 340 A.R. 1 (QB),2003 ABQB 425,[2004] 4 WWR 667,21 Alta LR (4th) 115,340 AR 1,[2003] CarswellAlta 654,[2003] AJ No 592 (QL),(2003), 340 AR 1 (QB),340 A.R. 1,[2003] A.J. No 592 (QL)
• Date: 19 June 2002
• Court: Court of Queen's Bench of Alberta (Canada)

McAteer v. Devoncroft Dev. Ltd. (2003), 340 A.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2003] A.R. TBEd. MY.099

Paul McAteer and Kingswood Golf & Country Club Developments Corporation, Kingswood Golf & Country Club Developments Limited Partnership, Kingswood Golf & Country Club Ltd. and Kingswood Golf & Country Club Limited Partnership (plaintiffs) v. Devoncroft Developments Limited, Martha G. Billes, Newmat Drilling (Western) Ltd. and Martha G. Billes, J. Michael Lavery, and Kenneth W. Mann as Trustees of the "Muriel G. Billes Estate Trust For Owen G. Billes", the said Muriel G. Billes Estate Trust For Owen G. Billes and Owen G. Billes (defendants) and Taylor McCaffrey and Bennett Jones (third parties)

Martha G. Billes, Newmat Drilling (Western) Ltd. and Martha G. Billes, J. Michael Lavery and Kenneth W. Mann as Trustees of the "Muriel G. Billes Estate Trust For Owen G. Billes" and the said Muriel G. Billes Estate Trust, and Owen Billes (plaintiffs by counterclaim) and Paul McAteer (defendant by counterclaim)

Pamela Mason as trustee for Catherine Anne McAteer, Paul William McAteer, and Sarah Elizabeth McAteer, Paul William McAteer, a minor, by his next friend Pamela Mason, Sarah Elizabeth McAteer, a minor, by her next friend Pamela Mason and Catherine Anne McAteer (plaintiffs) v. Martha G. Billes, Paul Murray McAteer, Newmat Drilling (Western) Ltd., Martha G. Billes, J. Michael Lavery and Kenneth W. Mann as trustees of the "Muriel G. Billes Estate Trust For Owen G. Billes" and Owen G. Billes (defendants) and Taylor McCaffrey, Bennett Jones and Paul McAteer (third parties)

Pamela McAteer as trustee for Paul McAteer Junior, Catherine McAteer and Sarah McAteer (applicants) and Martha G. Billes, Newmat Drilling (Western) Ltd., Martha G. Billes, J. Michael Lavery and Kenneth W. Mann, (in trust for the Muriel G. Billes Estate Trust for Owen G. Billes) and Devoncroft Developments Ltd. (respondents)

Pamela Mason, in the name of and on behalf of

Devoncroft Developments Limited (plaintiff) v. Martha G. Billes and Paul McAteer (defendants) and Taylor McCaffrey, Bennett Jones and Paul McAteer (third parties)

(Action Nos. 9201-19685; 9201-19753; 9701-04270; 9901-00905; 2003 ABQB 425)

Indexed As: McAteer et al. v. Devoncroft Developments Ltd. et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Rooke, J.

May 8, 2003.

Summary:

McAteer and Mason (husband and wife) owned a company (DDL). DDL owned, inter alia, 100% and 50% of the units in two limited partnerships. McAteer owned 100% of the two general partnerships. McAteer and Mason sought an investor to inject funds into DDL for the continued development of its partnership projects. Billes invested $750,000 in DDL and became a 50% shareholder, with McAteer holding 10% and Mason holding 40% for the McAteer/Mason children. McAteer and Billes became the sole directors and officers. The shareholders signed a unanimous shareholder agreement that required directors to disclose any interests in material contracts. After an affair between McAteer and Billes was disclosed, McAteer and Mason divorced. DDL required further funds. A Trust loaned the company $1.2 million dollars. Billes' mother's will had created the Trust for the sole benefit of Billes' son and Billes was one of its three trustees. The partnership units were given as part of the security for the Trust loan. McAteer and Billes' personal relationship deteriorated. DDL was in further need of funds. A company (Newmat) loaned it $2.1 million. Billes was a director of Newmat and, through a company which she owned 100%, a 49% shareholder. McAteer gave a guarantee as part of the security for the Newmat loan. The Newmat loan was for $200,000 more than originally intended so that a shareholder's loan by McAteer could be reduced and he could pay Billes $200,000 that he owed her personally. An unsecured interest bearing loan was thereby replaced with a secured and interest bearing loan. DDL's financial problems continued to worsen. The Trust and Newmat demanded their loans and guarantees. They placed DDL in receivership. Other security was enforced by other lenders. The Trust and Newmat issued Notices of Intention to Enforce Security. The limited and general partnerships voluntarily assigned themselves into bankruptcy. All of DDL's assets were disposed of. Four proceedings ensued. In the first proceeding, McAteer and the limited and general partnerships sued DDL, Billes, Newmat, the Trust and Billes' son. In a second proceeding, by Originating Notice of Motion, Mason claimed against Billes, Newmat, the Trust and DDL. In a third proceeding, Mason sued Billes, McAteer, Newmat, the Trust and Billes' son. In a fourth proceeding, Mason brought a derivative action on behalf of DDL against Billes and McAteer. The allegations in the second proceeding were similar to the issues in the third and fourth proceedings and were dealt with in those actions. In the three remaining actions, McAteer was either a defendant by counterclaim or a third party, and the solicitors who prepared the loan documentation were third parties.

The Alberta Court of Queen's Bench, in a decision reported at 307 A.R. 1, held that proper disclosure was not made to Mason of Billes' interests in the Trust and Newmat loans. However, McAteer had undertaken to Billes to provide Mason with full and proper disclosure and obtain her consent in accordance with the unanimous shareholder agreement and the Alberta Business Corporations Act, and represented to Billes that he had done so. The court held that the loans were valid. The court allowed Mason's claim based on the oppression remedy because of the lack of disclosure and because McAteer and Billes derived a personal benefit from the $200,000 loan. The court calculated Mason's damages based on the value of her shares just before the Trust loan was made ($440,000). Mason was awarded $440,000, interest and solicitor and client costs, jointly and severally against Billes personally and McAteer personally. The court allowed Billes' third party claim against McAteer on the basis of fraudulent misrepresentation and ordered McAteer to completely indemnify Billes for her liability in the Mason action and to pay Billes' solicitor-client costs. Newmat was granted judgment under the McAteer guarantee. The solicitors had no liability. The court dismissed all other claims by plaintiffs and defendants. McAteer made a voluntary assignment into bankruptcy, but his trustee consented to the lifting of the stay triggered by s. 69 of the Bankruptcy and Insolvency Act as it related to finalizing the Judgment Roll and cost awards in this matter.

The Alberta Court of Queen's Bench determined the matter of costs as between Mason and all of the defendants, except for those in the derivative action.

Practice - Topic 6921

Costs - General principles - General - The Alberta Court of Queen's Bench stated that "The role of the Court in the context of costs is to make an award between or among the parties. It is then the role of the taxing officer to assess the costs of the parties in the context of that award in order to reduce the award to a dollar figure." - See paragraph 9.

Practice - Topic 7030

Costs - Party and party costs - Entitlement to party and party costs - Where success or fault divided - Three separate but interrelated actions were directed to be tried together - The plaintiff was awarded solicitor/client costs but success had been divided - At issue was the allocation of costs - The Alberta Court of Queen's Bench stated that "However illuminating comparisons among the time spent by the various parties and their witnesses giving evidence may be, I reject it as the basis for allocation because such a process would attempt to allocate costs on a purely linear, not a causal, basis. In my view such a basis does not necessarily lead to an accurate allocation of the costs in relation to who was successful on the various claims. Accordingly, I find that it is not a process that lends itself to the quantification of costs in an appropriate manner. In my view, in the absence of more specific evidence, it is more appropriate to merely include a consideration of these comparisons in making a reasoned, qualitative judgement as to allocation. Although this will lead to a less arithmetic determination, it is unavoidable where the evidence does not permit a quantitative calculation of the appropriate allocation." - See paragraph 191.

Practice - Topic 7030

Costs - Party and party costs - Entitlement to party and party costs - Where success or fault divided - [See second Practice - Topic 7250 ].

Practice - Topic 7085

Costs - Party and party costs - Witness fees and costs of preparation for trial or appeal - Expert witness fees - The Alberta Court of Queen's Bench stated that "unless there is (this list is not intended to be exhaustive but illustrative): a true lack of expertise; the opinion is not on the point of a matter in issue; the conduct of the expert is improper in some sense; or there is some other good reason; the fact that an opinion was ultimately rejected is not by itself sufficient to disentitle a party to the costs of retaining the expert in good faith to opine on a matter of relevance to the court." - See paragraph 236.

Practice - Topic 7137

Costs - Party and party costs - Disbursements - Travelling expenses - Counsel - The Alberta Court of Queen's Bench allowed counsel's travelling expenses as a disbursement for a party who had been awarded solicitor/client costs and disallowed the same expenses for a party who had been awarded party/party costs - The court stated that a party who had been awarded solicitor/client costs was entitled to all reasonable costs incurred by her solicitors and there was no suggestion that these costs were not reasonable as between solicitor and client - While no one disputed that the travel costs of counsel for the party who had been awarded party/party costs were reasonable as between solicitor and client, that did not make them a proper party/party cost - See paragraphs 249 to 262.

Practice - Topic 7141

Costs - Party and party costs - Disbursements - Cost of expert advice - [See Practice - Topic 7085 ].

Practice - Topic 7146

Costs - Party and party costs - Disbursements - Trial transcripts - The Alberta Court of Queen's Bench held that it was not unreasonable for counsel to order the odd excerpt of a pertinent part of a trial transcript and such costs would be allowed - See paragraphs 242 to 248.

Practice - Topic 7155

Costs - Party and party costs - Liability for party and party costs - Bullock order or Sanderson order - Where success divided - The Alberta Court of Queen's Bench stated that "where a successful defendant is awarded costs against an unsuccessful defendant, it is a 'Sanderson order', and where they are paid by the plaintiff and recoverable by the plaintiff from the unsuccessful defendant, it is a 'Bullock order'." - See paragraph 1, footnote 4.

Practice - Topic 7155

Costs - Party and party costs - Liability for party and party costs - Bullock order or Sanderson order - Where success divided - [See Practice - Topic 7170 ].

Practice - Topic 7160

Costs - Party and party costs - Liability for party and party costs - Liability of an unsuccessful plaintiff for costs of third party - Three separate but interrelated actions were directed to be tried together - Success was divided - The Alberta Court of Queen's Bench applied the usual rule that an unsuccessful plaintiff would not be charged with the costs of third parties - The court rejected the argument that the 1981 amendment to the Rules was sufficient to subvert the "general rule" - While it was mandatory for third party proceedings to be joined with the primary action, it was open to the defendants to apply to sever the trial as between primary and third party issues - See paragraphs 345 to 362.

Practice - Topic 7170

Costs - Party and party costs - Liability for party and party costs - Joint and several liability - Three separate but interrelated actions were directed to be tried together - Success was divided - The Alberta Court of Queen's Bench awarded costs to the successful defendants and allocated those costs 50/50 between two plaintiffs - However, the court refused to make this costs order joint and several where one plaintiff (Mason) was the only "innocent party in the whole mess" and the other plaintiff (McAteer) had made a voluntary assignment into bankruptcy - Further, the court made a partial Sanderson order against McAteer and one unsuccessful defendant (Billes), making them jointly and severally liable for all but $30,000 of the costs allocated to Mason - It was reasonable of Mason to have joined the other defendants, but some issues were pursued unnecessarily - Only Billes and McAteer were responsible for the issues that led to the actions - See paragraphs 293 to 343.

Practice - Topic 7242

Costs - Party and party costs - Offers to settle - Jurisdiction - The Alberta Court of Queen's Bench stated that "Calderbank Offers allow a party to make a settlement offer without prejudice to the issues at trial, while giving the party making the offer the right to refer to it on the issue of costs." - See paragraph 1, footnote 2 - The court rejected the position that Calderbank offers could only be considered where the Rules of Court did not deal with an existing situation - See paragraphs 29 to 38.

Practice - Topic 7242

Costs - Party and party costs - Offers to settle - Jurisdiction - The Alberta Court of Queen's Bench stated that "while Rule 170, and related rules, attempt to provide a matrix of options for settlement offers bearing cost consequences, I would not purport to hold that they represent a complete code. Indeed, there may be reasons (such as confidentiality) why a party would not wish to make a formal offer of settlement, even where the offer would otherwise comply with the Rules. ... the Court should be slow to restrict the ways in which parties may try to settle cases with cost consequences, as those consequences encourage parties to settle litigation where a reasonable offer is made and penalizes others for proceeding with unnecessary trials." - See paragraphs 40 and 41.

Practice - Topic 7242

Costs - Party and party costs - Offers to settle - Jurisdiction - The Alberta Court of Queen's Bench, in determining costs, considered an offer made before trial by the successful party - The court held that although the offer had not been made in accordance with rule 170, the results were much the same and rule 170 applied by analogy - See paragraphs 54 to 55.

Practice - Topic 7242.1

Costs - Party and party costs - Offers to settle - Grounds for denying double costs - Rule 174(2) provided that where a plaintiff recovered a judgment equal to or greater than the amount of judgment offered in an offer to settle under rule 170, the judge shall, unless a special reason exists, award the plaintiff double costs after the service of the offer - The Alberta Court of Queen's Bench held that "an award of solicitor/client costs together with some additional reward/penalty [i.e., a Bullock/Sanderson order respecting the plaintiff's liability for costs to successful defendants] constitutes 'special reason', justifying departure from the result otherwise dictated by Rule 174. This allows for the reward/punishment aspect of Rule 174 to be addressed, without awarding the successful litigant a windfall which would result from the strict application of Rule 174 where solicitor/client costs have been awarded." - See paragraph 78.

Practice - Topic 7244

Costs - Party and party costs - Offers to settle - Amount recovered - Calculation - [See first Practice - Topic 7246 ].

Practice - Topic 7244

Costs - Party and party costs - Offers to settle - Amount recovered - Calculation - The Alberta Court of Queen's Bench held that in determining the amount of a judgment for comparison to the amount of an offer, it was appropriate to calculate prejudgment interest up to the date of the offer - See paragraph 66, footnote 16.

Practice - Topic 7245.4

Costs - Party and party costs - Offers to settle - Time of offer - The Alberta Court of Queen's Bench discussed the costs consequences of offers to settle made under rule 170 - The court opined that "... withdrawing an offer on a Sunday, less than 24 hours before the trial commences, would not take the Offer outside of the Rules." - See paragraph 39, footnote 11.

Practice - Topic 7245.4

Costs - Party and party costs - Offers to settle - Time of offer - [See first Practice - Topic 7250 ].

Practice - Topic 7246

Costs - Party and party costs - Offers to settle - Whether judgment equal to or more favourable than offer - The Alberta Court of Queen's Bench discussed when costs should be included in calculating the value of an offer in relation to the judgment - The court stated that "the best approach is not to adopt a strict formula that will be used in all cases regardless of the terms of the offer. There may be situations in which the comparison of costs is of little assistance." - The court, in the case before it, included in the comparison the successful party's costs up to the date of her offer as those costs were awarded as part of the judgment - See paragraphs 56 to 62.

Practice - Topic 7246

Costs - Party and party costs - Offers to settle - Whether judgment equal to or more favourable than offer - Three separate but interrelated actions were directed to be tried together - A plaintiff sought costs that took into consideration an offer to settle that she had made three days before trial - The offer had been made on a global basis and success was divided - The Alberta Court of Queen's Bench held that the offering party's success at trial was greater than the offer, even when taking into account her loss to the other defendants - See paragraphs 63 to 68.

Practice - Topic 7250

Costs - Party and party costs - Offers to settle - Joint offers - Three separate but interrelated actions were directed to be tried together - A plaintiff sought costs that took into consideration an offer to settle that she had made three days before trial - An opposing party argued that, as the offer was made on a global basis, and success was divided, the offer should have no impact on costs - The Alberta Court of Queen's Bench held that the offer was proper and should carry cost consequences - The global offer was an appropriate avenue by which to try to settle all of the claims in the various actions - Further it was a reasonable offer and a genuine effort at compromise - While the offer was made on the eve of trial, an offer of less than 45 days was not required except under the formal payment in rules - See paragraphs 45 to 53.

Practice - Topic 7250

Costs - Party and party costs - Offers to settle - Joint offers - Three separate but interrelated actions were directed to be tried together - The plaintiff was successful against some defendants, but not others - She sought costs that took into consideration a global offer to settle that she had made three days before trial - The plaintiff argued that, as one unsuccessful defendant was in de facto control of the successful defendants (a trust and a corporation), the court should not have regard to whether she was successful or unsuccessful against each of the defendants individually, but rather should consider only that the total value of the judgment was greater than the offer - The Alberta Court of Queen's Bench rejected the argument and awarded the successful defendants incremental party/party costs - See paragraphs 82 to 97.

Practice - Topic 7250

Costs - Party and party costs - Offers to settle - Joint offers - [See second Practice - Topic 7246 ].

Practice - Topic 7364

Costs - Costs of interlocutory proceedings - Costs of motions or applications - [See fourth Practice - Topic 7422 ].

Practice - Topic 7422

Costs - Solicitor and client costs - Measure of solicitor and client costs - Reasonable charges, reasonably performed - Rule 613 provided that "Barristers and solicitors are entitled to such compensation as may appear to be a reasonable amount to be paid by the client for the services performed having regard to ..." - A plaintiff was awarded solicitor/client costs - The unsuccessful defendant argued that rule 613 was the "touchstone" for assessing the amount of solicitor/client fees that the plaintiff could recover - The Alberta Court of Queen's Bench rejected the argument - The court stated that "the appropriate test for assessing the recoverable fees on a solicitor/client basis, between parties, is reasonableness. Specifically, all the claimant must show in the context of an award for solicitor/client costs is that the costs were reasonable in that they were 'fairly incurred in making a proper preparation and presentation of the case'." - See paragraphs 118 to 124.

Practice - Topic 7422

Costs - Solicitor and client costs - Measure of solicitor and client costs - Reasonable charges, reasonably performed - A plaintiff was awarded solicitor/client costs - The defendant argued that the amount of the costs was unreasonable on the basis that it would exceed the principal amount recovered - The Alberta Court of Queen's Bench rejected the argument - See paragraphs 125 to 130.

Practice - Topic 7422

Costs - Solicitor and client costs - Measure of solicitor and client costs - Reasonable charges, reasonably performed - The Alberta Court of Queen's Bench stated that "When new counsel are retained there is always some work required to 'get up to speed' and that is a proper solicitor/client cost, even if it produces some duplication. While parties should not be encouraged to change counsel repeatedly, changes in counsel do occur from time to time for a variety of reasons. Unless there is abuse in changing counsel, or some other relevant circumstance exists, none of which was suggested here, the change is reasonable and any costs associated with the change are costs of and within the 'four corners of the litigation', and the losing party should bear them." - See paragraph 142.

Practice - Topic 7422

Costs - Solicitor and client costs - Measure of solicitor and client costs - Reasonable charges, reasonably performed - The Alberta Court of Queen's Bench stated that "When solicitor/client costs are awarded against a party, it includes all reasonable costs relating to the advancement of the action, regardless of success in the individual application. As to the test of reasonableness of the work done, there is in my view nothing unreasonable per se in assessing the merits of and pursuing an interlocutory application for further disclosure even if that application is ultimately unsuccessful." - See paragraph 146.

Practice - Topic 7422

Costs - Solicitor and client costs - Measure of solicitor and client costs - Reasonable charges, reasonably performed - The Alberta Court of Queen's Bench stated that "the solicitor/client costs taxable against a party are those which 'a solicitor can tax against a resisting client'" - See paragraph 153.

Practice - Topic 7429

Costs - Solicitor and client costs - Measure of solicitor and client costs - Counsel fees - [See third Practice - Topic 7422 ].

Practice - Topic 7451.2

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Where success divided - Bullock or Sanderson order - [See first Practice - Topic 7155 ].

Practice - Topic 7466.3

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Oppression actions - Three separate but interrelated actions were directed to be tried together - Success was divided - Mason, a plaintiff, was awarded solicitor/client costs on the basis of her success in her oppression action - Mason argued that she was also entitled to solicitor/client costs of finalizing and entering the Judgment Roll and resolving the cost issues because the costs proceedings were "costs of and incidental to" the proceedings (Queen's Bench Act, s. 21) - The Alberta Court of Queen's Bench awarded Mason 50% of the fee portion of her solicitor/client costs and 100% of her disbursements on the application - The defendants had been quite successful on the costs issues raised, especially in limiting the amount of Mason's solicitor/client costs - Moreover, Mason failed to address almost any of the 14 issues raised in the defendants' brief -See paragraphs 364 to 370.

Practice - Topic 7531

Costs - Solicitor and client costs - Disbursements - Travelling expenses - [See Practice - Topic 7137 ].

Practice - Topic 7603.1

Costs - Taxation of costs - Evidence and proof - The Alberta Court of Queen's Bench stated that "reference to onuses in the context of costs assessments and taxation cannot be a hard and fast rule and the onus must be tempered on occasion by reason and logic." - See paragraph 135.

Practice - Topic 7806.2

Costs - Solicitor and his own client costs - Disbursements - Expert's fees - [See Practice - Topic 7085 ].

Cases Noticed:

Calderbank v. Calderbank, [1975] 3 W.L.R. 586; [1975] 3 All E.R. 333 (C.A.), refd to. [para. 1, footnote 2].

Inkit Ltd. v. Polar Parkas, [1995] N.W.T.J. No. 119 (S.C.), disagreed with [para. 1, footnote 2].

Bullock v. London General Omnibus Co., [1907] 1 K.B. 264 (K.B.), refd to. [para. 1, footnote 4].

Sanderson v. Blyth Theatre Co., [1903] 2 K.B. 533 (C.A.), refd to. [para. 1, footnote 4].

Apple Computer Inc. et al. v. Mackintosh Computers Ltd. et al. (No. 4) (1987), 12 F.T.R. 287; 43 D.L.R.(4th) 184 (T.D.), refd to. [para. 1, footnote 4].

Brown v. Lowe et al. (2002), 162 B.C.A.C. 203; 264 W.A.C. 203; 14 C.P.C.(5th) 13 (C.A.), not folld. [para. 32].

Pacific Hunter Resources Inc. et al. v. Moss Management Inc., [2002] B.C.T.C. 396; 16 C.P.C.(5th) 266 (S.C.), refd to. [para. 33].

Brydges v. British Columbia Transit et al., [2002] B.C.T.C. 808; 22 C.P.C.(5th) 62 (S.C.), refd to. [para. 33].

Antonio v. Federici, [2002] B.C.T.C. 545; 19 C.P.C.(5th) 323 (S.C.), refd to. [para. 33].

Millott Estate et al. v. Reinhard et al. (2002), 322 A.R. 307 (Q.B.), refd to. [para. 39, footnote 11].

Wenden v. Trikha et al. (1992), 124 A.R. 1 (Q.B.), refd to. [para. 39, footnote 11].

Alberta (Treasury Branches) v. Floral Holdings - see G.C.G. Engineering Partnership v. Royal Bank of Canada.

G.C.G. Engineering Partnership v. Royal Bank of Canada (1990), 106 A.R. 27; 73 Alta. L.R.(2d) 283 (Q.B.), refd to. [para. 39, footnote 12].

Higgs v. Fainstein (1992), 72 B.C.L.R.(2d) 24 (S.C.), disagreed with [para. 42].

Ferris v. Kirstiuk (1989), 39 B.C.L.R.(2d) 268 (Co. Ct.), disagreed with [para. 42].

Starling v. Martin (1996), 45 C.P.C.(4th) 227 (B.C.S.C.), refd to. [para. 46].

University of Saskatchewan v. Fireman's Fund Insurance Co. of Canada et al., [1999] 4 W.W.R. 482; 173 Sask.R. 18 (Q.B.), dist. [para. 50].

Steve's Contracting Ltd. v. Williams et al. (1997), 214 A.R. 318 (Q.B.), refd to. [para. 56].

Merrill Lynch Canada Inc. v. Cassina (1992), 15 C.P.C.(3d) 264 (Ont. Gen. Div.), refd to. [para. 56].

Ness v. Leveridge (1995), 174 A.R. 283; 102 W.A.C. 283; 34 Alta. L.R.(3d) 407 (C.A.), folld. [para. 57].

Hillside Investments Ltd. v. Boychuk, [2002] A.R. Uned. 231 (Q.B.), refd to. [para. 58].

Greep v. Josephson et al. (2001), 285 A.R. 326 (Q.B.), refd to. [para. 58].

Pugsley v. Wong et al., [2001] A.R. Uned. 293 (C.A.), dist. [para. 59].

Jacobs v. Innisfail Transfer Ltd. et al. (1995), 170 A.R. 333; 28 Alta. L.R.(3d) 191 (Q.B.), refd to. [para. 66, footnote 16].

Parkridge v. Anglin, [1996] A.J. No. 768 (Q.B.), refd to. [para. 66, footnote 17].

Shillingford v. Dalbridge Group Inc. et al. (2000), 268 A.R. 324 (Q.B.), refd to. [para. 72].

Budget Rent-A-Car of Edmonton Ltd. v. Security National Insurance Co. (2001), 277 A.R. 305; 242 W.A.C. 305 (C.A.), refd to. [para. 73].

Laube v. Juchli (1998), 228 A.R. 81; 188 W.A.C. 81 (C.A.), refd to. [para. 73].

Forster v. MacDonald et al. (1995), 178 A.R. 98; 110 W.A.C. 98 (C.A.), refd to. [para. 73].

Whittle v. Davies (1987), 104 A.R. 336; 45 D.L.R.(4th) 331 (C.A.), refd to. [para. 73].

Edmonton (City) v. Lovat Tunnel Equipment Inc. et al. (2002), 328 A.R. 314 (Q.B.), refd to. [para. 75].

Mitran v. Guarantee RV Centre Inc. et al. (1999), 251 A.R. 77 (Q.B.), refd to. [para. 75].

Jama et al. v. Bobolo et al. (2002), 311 A.R. 368 (Q.B.), refd to. [para. 75].

Al-Asadi v. Alberta Motor Association Insurance Co. (2002), 334 A.R. 242 (Q.B.), refd to. [para. 76].

Cousineau v. London Fire Insurance Co. (1888), 12 P.R. 512 (C.A.), varied (1889), 13 P.R. 36 (Q.B.), refd to. [para. 106].

Cromarty v. Cromarty (1917), 38 O.L.R. 481 (H.C.), affd. (1917), 39 O.L.R. 571 (C.A.), refd to. [para. 106].

Solicitors, Re, [1967] 2 O.R. 137 (H.C.), refd to. [para. 106].

Apotex v. Egis Pharmaceuticals (1991), 4 O.R.(3d) 321 (Gen. Div.), refd to. [para. 106].

Nova, An Alberta Corp. v. Guelph Engineering Co. (1988), 89 A.R. 363; 60 Alta. L.R.(2d) 366 (Q.B.), refd to. [para. 114].

Magee v. Board of Trustees (Roman Catholic Separate) of Ottawa (City) (1962), 32 D.L.R.(2d) 162 (Ont. H.C.), refd to. [para. 121].

City Lumber Corp. v. Parlee McLaws, [1998] A.J. No. 1500 (Q.B. Tax. Off.), refd to. [para. 121].

Harwood v. Harwood, [1998] A.R. Uned. 82; 61 Alta. L.R.(3d) 56 (Q.B.), refd to. [para. 121].

Holloway v. Holloway (2001), 199 Nfld. & P.E.I.R. 1; 600 A.P.R. 1; 6 C.P.C.(5th) 34 (Nfld. C.A.), refd to. [para. 121].

Guarantee Co. of North America v. Beasse et al. (1993), 139 A.R. 241 (Q.B.), refd to. [para. 121].

Hanson v. McCormick, [1989] A.W.L.D. 537 (Alta. C.A.), refd to. [para. 128].

Petrogas Processing Ltd. v. Westcoast Transmission Co. (1990), 105 A.R. 384 (Q.B.), refd to. [para. 132].

Byers Transportation v. Kosanovich, [1996] F.C.J. No. 760 (Tax. Off.), refd to. [para. 133].

Pharmacia Inc. v. Canada (Minister of National Health and Welfare), [1999] F.C.J. No. 1770 (Assess. Off.), refd to. [para. 135].

Hughes v. Gillingham, [1999] A.R. Uned. 515 (Q.B.), consd. [para. 232].

Monashee Petroleums Ltd. v. Pan Cana Resources Ltd. (1988), 85 A.R. 183 (C.A.), refd to. [para. 233].

Anderson et al. v. Ball et al. (1997), 214 A.R. 332 (Q.B.), refd to. [para. 237].

MacCabe v. Board of Education of Westlock (Roman Catholic Separate) School District No. 110 et al. (1999), 243 A.R. 280 (Q.B.), revd. in part (2001), 293 A.R. 41; 257 W.A.C. 41 (C.A.), refd to. [para. 242].

S.G.H. v. Gorsline et al. (2001), 292 A.R. 329 (Q.B.), refd to. [para. 244].

Reese et al. v. Alberta (Minister of Forestry, Lands and Wildlife) et al. (1992), 133 A.R. 127 (Q.B.), refd to. [para. 244].

Sidorsky et al. v. CFCN Communications Ltd. et al. (1995), 167 A.R. 181 (Q.B.), revd. in part (1997), 206 A.R. 382; 156 W.A.C. 382 (C.A.), refd to. [para. 244].

Elliott v. Hill Bros. Expressways Ltd. et al. (1999), 240 A.R. 371 (Q.B.), refd to. [para. 246].

Dennis v. Northwest Territories (Commissioner) (1990), 39 C.P.C.(2d) 41 (N.W.T.S.C.), refd to. [para. 249].

Madgett v. Dawley et al. (1986), 170 A.R. 351 (Q.B.), refd to. [para. 249].

Waterous Investments Inc. v. Liberton Holdings Ltd. (1996), 183 A.R. 229 (Q.B.), refd to. [para. 249].

Beenham et al. v. Rigel Oil & Gas Ltd. et al. (1998), 240 A.R. 122 (Q.B.), dist. [para. 268].

Viridian Inc. v. Dresser Canada Inc., [2001] A.J. No. 1112 (Q.B.), refd to. [para. 271].

Pocklington Foods Inc. v. Alberta (Provincial Treasurer) (1998), 226 A.R. 238 (Q.B.), refd to. [para. 271].

Forster v. Farquhar, [1893] 1 Q.B. 564 (C.A.), refd to. [para. 284].

Reid, Hewitt and Co. v. Joseph, [1918] A.C. 717 (H.L.), refd to. [para. 284].

Schwartz v. Guerin, [1922] 2 W.W.R. 862 (Alta. C.A.), refd to. [para. 284].

Herman et al. v. Miller et al., [1988] 2 W.W.R. 72; 64 Sask.R. 71 (Q.B.), refd to. [para. 285].

Nathu v. Imbrook Properties Ltd. (1992), 131 A.R. 186; 25 W.A.C. 186; 4 Alta. L.R.(3d) 149 (C.A.), refd to. [para. 286].

Jackson and Parkview Holdings Ltd. v. Trimac Industries Ltd. et al. (1994), 155 A.R. 42; 73 W.A.C. 42 (C.A.), refd to. [para. 287].

Wilde v. Isfeld (1994), 149 A.R. 237; 63 W.A.C. 237 (C.A.), refd to. [para. 288].

Miller (Ed) Sales & Rentals Ltd. v. Caterpillar Tractor Co. et al. (1994), 170 A.R. 341 (Q.B.), refd to. [para. 288].

Calbar Securities Ltd. v. Toole Peet Co. et al. (1984), 50 A.R. 393; 30 Alta. L.R.(2d) 286 (C.A.), refd to. [para. 289].

Miller (Ed) Sales & Rentals Ltd. v. Caterpillar Tractor Co. et al. (1996), 187 A.R. 81; 127 W.A.C. 81; 41 Alta. L.R.(3d) 217, additional reasons (1998), 175 A.R. 304; 216 W.A.C. 304; 61 Alta. L.R.(3d) 256 (C.A.), leave to appeal refused (1997), 215 N.R. 159; 209 A.R. 400; 160 W.A.C. 400 (S.C.C.), refd to. [para. 309].

Simpson v. Bender et al. (1996), 180 A.R. 220 (Q.B.), refd to. [para. 309].

Besterman v. British Motor Cab Co., [1914] 3 K.B. 181, refd to. [para. 323].

Macleod v. Great West Distributors Ltd., [1941] 3 W.W.R. 827 (Alta. Dist. Ct.), refd to. [para. 324].

Bosley (W.H.) & Co. v. Marathon Realty Co. (1982), 39 O.R.(2d) 144 (H.C.), refd to. [para. 325].

Upper Lakes Shipping Ltd. v. St. Lawrence Cement Inc. (1988), 28 C.P.C.(2d) 270 (Ont. H.C.), varied (1988), 41 C.P.C.(2d) 318 (Ont. H.C.), refd to. [para. 325].

Wenden v. Trikha et al. (1992), 124 A.R. 1 (Q.B.), refd to. [para. 326].

Wonsch Construction Co. v. National Bank of Canada - see Wonsch Construction Co. et al. v. Danzig Enterprises Ltd. et al.

Wonsch Construction Co. et al. v. Danzig Enterprises Ltd. et al. (1990), 42 O.A.C. 195; 1 O.R.(3d) 382 (C.A.), refd to. [para. 328].

Anderson v. Ryder (L.J.) Investments Ltd. et al. (2002), 299 A.R. 135; 266 W.A.C. 135 (C.A.), refd to. [para. 329].

Voest-Alpine Canada Corp. et al. v. Pan Ocean Shipping Co. et al. (1993), 28 B.C.A.C. 300; 47 W.A.C. 300; 18 C.P.C.(3d) 328 (C.A.), refd to. [para. 329].

Dellelce Construction and Equipment v. Portec (1990), 73 O.R.(2d) 396 (H.C.), refd to. [para. 329].

Scarborough Golf & Country Club Ltd. v. Scarborough (City) et al. (1986), 57 O.R.(2d) 202 (H.C.), affd. (1988), 31 O.A.C. 260 (C.A.), refd to. [para. 329].

Hock v. Hospital for Sick Children et al. (1998), 110 O.A.C. 268; 20 C.P.C.(4th) 206 (C.A.), refd to. [para. 329].

Goldsworthy v. Brickell, [1987] 2 W.L.R. 133 (C.A.), refd to. [para. 332].

Upper Lakes Shipping Ltd. v. St. Lawrence Cement Inc. (1988), 28 C.P.C. 270 (Ont. H.C.), refd to. [para. 332].

Badger and Surkan v. Holy Family Hospital, [1973] 1 W.W.R. 302 (Sask. C.A.), refd to. [para. 332].

Sorrel 1985 Limited Partnership et al. v. Sorrel Resources Ltd. et al. (1997), 204 A.R. 7 (Q.B.), revd. (2000), 277 A.R. 1; 242 W.A.C. 1 (C.A.), refd to. [para. 348].

Kovacvich v. Ortho Pharmaceutical (Canada) Ltd., [1995] B.C.J. No. 1908 (S.C.), folld. [para. 349].

Smith v. Welland (1921), 64 D.L.R. 349 (Ont. H.C.), refd to. [para. 352].

Johansson v. Cronquist, [1917] 3 W.W.R. 1029 (Alta. C.A.), refd to. [para. 353].

Fink v. Bourassa, [1974] 2 W.W.R. 84 (Sask. Q.B.), refd to. [para. 353].

Bristowe Ltd. v. Bennett and White Construction (1958), 26 W.W.R.(N.S.) 477 (B.C.S.C.), refd to. [para. 353].

S.R. Petroleum Sales Ltd. v. Canadian Turbo Inc. et al. (1995), 179 A.R. 138 (Q.B.), appld. [para. 368].

Statutes Noticed:

Rules of Court (Alta.), rule 170 [para. 39, footnote 11]; rule 174(2) [para. 54]; rule 613 [para. 119].

Authors and Works Noticed:

Alberta, Department of Justice, Court Services, Court of Queen's Bench Costs Manual: Costs Between Parties, Disbursements, pp. 15, 16 [para. 249]; 19 [paras. 242, 244]; 20 [para. 244].

Orkin, M.M., The Law of Costs (2nd Ed. 1999), ss. 102.2 [para. 121]; 103 [para. 106]; 207.9 [para. 346]; 208.6 [para. 190]; 209.2 [paras. 309, 312, 325]; 209.3 [paras. 1, 309, 312, footnote 4]; 209.7 [paras. 348, 351]; 214.6.1 [para. 1, footnote 2]; 602.3(3) [para. 9]; footnotes 493, 494 [para. 325]; pp. 1-10 [para. 106]; 2-130 to 2-133 [para. 50].

Stevenson, W.A., and Côté, J.E., Alberta Civil Procedure Handbook, 2002 (2002), pp. 130 [para. 35, footnote 10]; 470 [para. 123].

Counsel: [see footnote 1]

G.B. Davison, for Mason et al.;

J.T. Eamon and L.L. Froese, for Billes, Trust, Newmat et al.

This matter was heard on June 19, 2002, by Rooke, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary. Written submissions were received on July 19 and September 5, 2003. Rooke, J., delivered the following decision on May 8, 2003.