Mitran v. Guarantee RV Centre Inc. et al., (1999) 251 A.R. 77 (QB)

• Judge: Johnstone, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: September 03, 1999
• Citations: (1999), 251 A.R. 77 (QB)

Mitran v. Guarantee RV Centre Inc. (1999), 251 A.R. 77 (QB)

MLB headnote and full text

Temp. Cite: [1999] A.R. TBEd. OC.026

William Mitran (plaintiff/defendant by counterclaim) v. Guarantee RV Centre Inc., Richard Knappe, Mervin See and Craig Stamp (defendants/plaintiffs by counterclaim)

(Action No. 9603-02300)

Indexed As: Mitran v. Guarantee RV Centre Inc. et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Johnstone, J.

September 24, 1999.

Summary:

The plaintiff sued the defendant company and its owners alleging constructive dis­missal. The defendants counterclaimed alleging that the plaintiff intentionally and wrongfully overvalued trade-ins resulting in losses to the defendants and personally benefitting the plaintiff.

The Alberta Court of Queen's Bench, in a decision reported at 242 A.R. 235, dismissed the action and counterclaim. Costs remained in issue. The defendant company submitted that it should have double costs because of a settlement offer that it made. The plaintiff submitted that the defendant should be denied costs because the defendant made fraud allegations against the plaintiff that were only withdrawn on the second day of trial.

The Alberta Court of Queen's Bench held that the defendant's costs should be reduced from double costs to single costs because of its late withdrawal of the fraud allegations.

Practice - Topic 6936

Costs - General principles - Evidence - After successfully defending against a constructive dismissal action, the defendant company sought payment for a $16,000 expense incurred to charter a plane for one of its witnesses - The defendant's counsel did not file any materials on the issue - There was no affidavit evidence regarding how he or the witness determined that chartering a plane was a reasonable expense - The only evidence on the defen­dant's behalf was unsworn, given orally by its counsel at trial - The Alberta Court of Queen's Bench held that the only evidence available on a costs application was sworn evidence and the defendant's counsel should have filed affidavit evi­dence - The court granted leave to the defendant's counsel to file an affidavit on the matter - See paragraphs 12 to 22.

Practice - Topic 7028

Costs - Party and party costs - Entitle­ment to party and party costs - Successful party - Exceptions - Unfounded or exces­sive or unnecessary actions or claims - After successfully defending against a constructive dismissal action, the defendant company submitted that it should have double costs because of a settlement offer that it made - The plaintiff submitted that the defendant should be denied costs because the defendant made fraud allega­tions against the plaintiff that were only withdrawn on the second day of trial - The Alberta Court of Queen's Bench held that the defendant's costs should be reduced from double costs to single costs because of its late withdrawal of the fraud allegations.

Practice - Topic 7037

Costs - Party and party costs - Entitle­ment to party and party costs - Factors or cir­cumstances reducing entitlement - [See Practice - Topic 7028 ].

Cases Noticed:

Jackson and Parkview Holdings Ltd. v. Trimac Industries Ltd. et al. (1993), 138 A.R. 161; 8 Alta. L.R.(3d) 403 (Q.B.), varied (1994), 155 A.R. 42; 73 W.A.C. 42; 20 Alta. L.R.(3d) 117 (C.A.), appld. [para. 6].

Reese et al. v. Alberta (Minister of For­estry, Lands and Wildlife) et al. (1992), 133 A.R. 127; 5 Alta. L.R.(3d) 40 (Q.B.), refd to. [para. 6].

Fox v. Alberta et al., [1998] A.R. Uned. 571 (Q.B.), refd to. [para. 10].

Wolf v. Shaw, [1999] A.R. Uned. 326 (Q.B.), refd to. [para. 10].

Mackie v. Wolfe (1996), 184 A.R. 339; 122 W.A.C. 339 (C.A.), refd to. [para. 10].

Morris et al. v. Hunt Morris & Associates (1982) Ltd. et al. (1987), 78 A.R. 96 (Q.B.), refd to. [para. 10].

Petrogas Processing Ltd. v. Westcoast Transmission Co. (1990), 105 A.R. 384 (Q.B.), appld. [para. 13].

MacCabe v. Board of Education of West­lock (Roman Catholic Separate) School District No. 110 et al. (1999), 243 A.R. 280 (Q.B.), appld. [para. 14].

Cairns v. Cairns, [1931] 3 W.W.R. 335 (Alta. C.A.), refd to. [para. 17].

Mackley v. University of Alberta, [1933] 2 W.W.R. 330 (Alta. C.A.), refd to. [para. 18].

Alberta v. Duffy; Alberta v. Culshaw (1981), 31 A.R. 560 (Q.B. Master), refd to. [para. 18].

Nichols v. Gray, [1978] B.C.J. No. 818 (C.A.), refd to. [para. 19].

Modern Livestock v. Elgersma et al. (1990), 74 Alta. L.R.(2d) 392 (Q.B.), refd to. [para. 25].

Watson v. Holyoake (1986), 15 C.P.C.(2d) 262 (Ont. H.C.), refd to. [para. 26].

Begro Construction Ltd. v. St. Mary River Irrigation District et al. (1995), 167 A.R. 144 (Q.B.), refd to. [para. 34].

Husky Oil Operations Ltd. v. Forest Oil Corp. (1990), 105 A.R. 27; 73 Alta. L.R.(2d) 223 (Q.B.), revd. (1991), 113 A.R. 349; 79 Alta. L.R.(2d) 134 (C.A.), leave to appeal refused (1991), 137 N.R. 156; 131 A.R. 46; 25 W.A.C. 46; 81 Alta. L.R.(2d) lxvii (S.C.C.), refd to. [para. 35].

Wilson v. K.P. Manufacturers (Calgary) Ltd. et al. (1998), 225 A.R. 205; 60 Alta. L.R.(3d) 333 (Q.B.), refd to. [para. 38].

Lewis v. Interprovincial Parts and Furni­ture Inc., [1996] A.J. No. 977 (Q.B.), refd to. [para. 39].

Lawler v. Ron's Coach and Bus Repairs Inc. et al., [1998] A.R. Uned. 200; 68 Alta. L.R.(3d) 107 (Q.B.), refd to. [para. 40].

Mobil Oil Canada Ltd. v. Canadian Superior Oil Ltd. and Nielsen (1979), 21 A.R. 111; 105 D.L.R.(3d) 355 (Q.B.), refd to. [para. 44].

Evaskow v. International Brotherhood of Boilermakers, Iron Ship Builders, Black­smiths, Forgers and Helpers (1969), 71 W.W.R.(N.S.) 565 (Man. C.A.), refd to. [para. 44].

Moore v. Edmonton (City) et al. (1997), 202 A.R. 81 (Q.B.), refd to. [para. 44].

Haggart Construction Ltd. et al. v. Cana­dian Imperial Bank of Commerce et al. (1998), 213 A.R. 241 (Q.B.), refd to. [para. 44].

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; [1993] 8 W.W.R. 513; 108 D.L.R.(4th) 193; 84 B.C.L.R.(2d) 1; 49 R.F.L.(3d) 117; 18 C.R.R.(2d) 41, refd to. [para. 44].

Authors and Works Noticed:

Orkin, Mark M., The Law of Costs (2nd Ed.) (1998 Looseleaf Ed.), pp. 2-26 [para. 6]; 2-39 [para. 23].

Stevenson, W.A., and Côté, J.E., Civil Procedure Guide (1996), generally [para. 17].

Counsel:

Craig D. Boyer (Bryan & Co.), for the plaintiff;

Grant Vogeli (Burnet, Duckworth & Palmer), for the defendants.

This matter was heard on September 3, 1999, by Johnstone, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on September 24, 1999.