Pond (Peter) Holdings Ltd. v. Shragge, 2002 ABQB 746

• Judge: Read, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: August 16, 2002
• Citations: 2002 ABQB 746;(2002), 326 A.R. 44 (QB)

Pond Holdings Ltd. v. Shragge (2002), 326 A.R. 44 (QB)

MLB headnote and full text

Temp. Cite: [2002] A.R. TBEd. OC.131

Peter Pond Holdings Ltd. (plaintiff) v. Phil Shragge (defendant)

(Action No. 0003 03756; 2002 ABQB 746)

Indexed As: Pond (Peter) Holdings Ltd. v. Shragge

Alberta Court of Queen's Bench

Judicial District of Edmonton

Read, J.

August 16, 2002.

Summary:

Shragge, on behalf of an investment company, introduced two companies to an investor. The investor invested money and acquired shares in each company. The investor sued Shragge, asserting that he had breached two oral collateral agreements under which he personally agreed to repurchase the shares at any time for the price paid.

The Alberta Court of Queen's Bench, in a decision reported at 322 A.R. 22, dismissed the action. The court awarded the defendant costs under Column 3 of Schedule "C" of the Rules of Court. The parties made submissions on costs on the following three issues: (1) was a settlement offer made by the defendant an offer under rule 169 so that the defendant was entitled to double costs under rule 174(1.1); (2) should the total lawyer's fees charged to the defendant for preparation for and attendance at trial to give evidence as an ordinary witness be paid as a disbursement; and (3) was the Goods and Services Tax payable on the "fees" portion of the amounts payable in respect to costs ordered under Schedule "C".

The Alberta Court of Queen's Bench held that (1) the defendant was entitled to double costs under rule 174(1.1); (2) the defendant was entitled to include only the normal witness fees for the lawyer as set out in Schedule E as a disbursement; and (3) GST was not payable in respect to the fees portion of the defendant's costs.

Practice - Topic 7063.2

Costs - Party and party costs - Counsel fees - Allowance for goods and services tax - A successful defendant was awarded costs under Column 3 of Schedule "C" of the Rules of Court - The defendant claimed GST payable in respect to the fees portion of the amount payable - The Alberta Court of Queen's Bench declined to exercise its discretion to allow the claim where (1) the costs awarded was not a service and no GST was payable by the defendant respecting the award; (2) there was no evidence respecting whether some or all of such GST charges would ultimately be recovered by or refunded to the defendant; (3) if the legislature had determined that GST should be payable on the fees portion of the Schedule, it would have been a simple matter to provide for it specifically - See paragraphs 22 to 25.

Practice - Topic 7086

Costs - Party and party costs - Witness fees and costs of preparation for trial or appeal - Witness fees (incl. conduct money) - A lawyer gave evidence for a successful defendant as an ordinary witness respecting professional services rendered - Schedule "E" of the Rules of Court provided for a $75 fee for a witness who was a professional and was called in consequence of professional services rendered or to give expert evidence - The Alberta Court of Queen's Bench held that it had the discretion to award more than $75.00 if "special circumstances" existed - Special circumstances did not exist where the witness's evidence was not helpful in determining the basic issue that was before the court - See paragraphs 16 to 21.

Practice - Topic 7091

Costs - Party and party costs - Witness fees and costs of preparation for trial or appeal - Increased witness fees - [See Practice - Topic 7086 ].

Practice - Topic 7242.1

Costs - Party and party costs - Offers to settle - Grounds for denying double costs - A plaintiff's action was dismissed - Prior to trial, the defendant made an offer to settle which mistakenly referenced rules 170 and 174(2) of the Alberta Rules of Court (offer made by a plaintiff to a defendant) instead of rules 169 and 174(1.1) (offers made by a defendant to a plaintiff) - The Alberta Court of Queen's Bench awarded the defendant double costs for steps taken after the settlement offer - It would have been clear to the plaintiff that the defendant was seeking to invoke the penalty provisions of rule 174 - To deny costs based on a clerical error would be a technical defence - Such an error should not operate to deny the defendant the benefits of rule 174 - The error was not, in itself, a "special reason" for denying double costs - See paragraphs 5 to 15.

Cases Noticed:

G.C.G. Engineering Partnership v. Royal Bank of Canada, [1990] 4 W.W.R. 265; 106 A.R. 27 (Q.B.), dist. [para. 6].

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

Elliott v. Hill Bros. Expressways Ltd. et al. (1999), 240 A.R. 371 (Q.B.), refd to. [para. 11].

Whittle v. Davies (1987), 104 A.R. 336 (C.A.), refd to. [para. 11].

Forster v. MacDonald et al. (1995), 178 A.R. 98; 110 W.A.C. 98; 35 Alta. L.R.(3d) 319 (C.A.), refd to. [para. 14].

Alberta Opportunity Co. v. Moulton et al. (1991), 117 A.R. 226; 2 W.A.C. 226; 84 Alta. L.R.(2d) 198 (C.A.), refd to. [para. 18].

Hetu v. Traff et al. (1999), 252 A.R. 304 (Q.B.), refd to. [para. 19].

Statutes Noticed:

Rules of Court (Alta.), Schedule "E" [para. 17].

Authors and Works Noticed:

Alberta, Department of Justice, Court Services, Court of Queen's Bench Costs Manual, generally [para. 23].

Counsel:

G. James Thorlakson (Miller Thomson LLP), for the plaintiff;

Neil W. Nichols (Nichols & Company), for the defendant.

Read, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, heard this action on June 25 and 26, 2002, and delivered the following memorandum of decision on August 16, 2002.