Power (Ted) Realty Inc. v. Danray Alberta Ltd. et al., (2000) 268 A.R. 352 (QB)

• Judge: Murray, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 22, 2000
• Jurisdiction: Alberta
• Citations: (2000), 268 A.R. 352 (QB)

Power Realty Inc. v. Danray Alta. Ltd. (2000), 268 A.R. 352 (QB)

MLB headnote and full text

Temp. Cite: [2000] A.R. TBEd. JL.072

Ted Power Realty Inc. (plaintiff) v. Danray Alberta Ltd. (defendant)

Danray Alberta Ltd. (plaintiff by counter­claim/defendant) v. Ted Power Realty Inc. (defendant by counterclaim/plaintiff)

(Action No. 9703-18236)

Indexed As: Power (Ted) Realty Inc. v. Danray Alberta Ltd. et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Murray, J.

June 29, 2000.

Summary:

The plaintiff sued the defendant for real estate commissions allegedly earned on the sale of the defendant's apartment buildings. The defendant counterclaimed against the plaintiff respecting monies the defendant had paid into court and which had been released to the plaintiff.

The Alberta Court of Queen's Bench, in a decision reported 262 A.R. 319, dismissed the action and allowed the count­erclaim. The defendant sought solicitor and client costs or, alternatively, costs in a higher column than usual because of the conduct of the plaintiff. It also requested that costs to be awarded jointly and severally against the plaintiff, A.D.B. Investments Ltd. and Bernstein.

The Alberta Court of Queen's Bench held that the circumstances warranted an increase in the amount of the party and party costs and awarded costs on column 4 of Sche­dule "C" (rather than column 2) plus all reason­able disbursements. The court declined to grant costs jointly and severally against Bernstein, A.D.B. and Power, since notice was not given to Bernstein and A.D.B.

Practice - Topic 7110.1

Costs - Party and party costs - Special orders - Increase in scale of costs - Con­duct of opposite party - Power sued Danray for real estate commissions - It obtained an attachment order and garnishee summons before judgment (ex parte) - Danray advised that it intended to have them set aside - Monies were paid into court - Danray had not filed a defence - Power noted it in default, obtained default judgment and obtained the monies paid into court - Power quickly disbursed the funds (more than allegedly owed) and viola­ted an injunction Danray obtained restrain­ing Power from disbursing the funds - Danray was permitted to file a defence - Power's action was dismissed - The Alberta Court of Queen's Bench held that Power's behaviour was sufficient to justify an award of increased costs but was not sufficiently scandalous or reprehensible to warrant solicitor-client costs - See para­graphs 1 to 28.

Practice - Topic 7162

Costs - Party and party costs - Liability for - Liability of third party for plaintiff's costs - The Alberta Court of Queen's Bench dismissed the plaintiff's action and held that its behaviour during the course of litigation was sufficient to justify an award of increased costs to the defendant - The court also found that Bernstein was the real promoter behind the litigation and was the person who "received its fruits" - The court stated that Bernstein and his com­pany should be found jointly and severally liable for the costs awarded in favour of the defendant - However, they were non-parties and the defendant had not given them notice that it would be seeking costs against them - Therefore, costs were awarded against the plaintiff alone - See paragraphs 30 to 35.

Practice - Topic 7454

Costs - Solicitor and client costs - Entitle­ment to - Improper, irresponsible or uncon­scionable conduct - [See Practice - Topic 7110.1 ].

Cases Noticed:

McCarthy v. Calgary Roman Catholic Separate School District No. 1 (No. 1), [1980] 5 W.W.R. 524; 30 A.R. 208 (Q.B.), refd to. [para. 16].

Sonnenberg (Max) Inc. v. Stewart, Smith (Can.) Ltd., [1987] 2 W.W.R. 75 (Alta. Q.B.), refd to. [para. 17].

Seitz, Re (1974), 6 O.R.(2d) 460 (H.C.), refd to. [para. 17].

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; 18 C.R.R.(2d) 41; 49 R.F.L.(3d) 117, refd to. [para. 19].

Mobil Oil Canada Ltd. v. Canadian Superior Oil Ltd. and Nielson, [1980] 1 W.W.R. 453; 21 A.R. 111 (Q.B.), refd to. [para. 19].

Vanderclay Development Co. v. Inducon Engineering Ltd. (1969), 1 D.L.R.(3d) 337 (Ont. H.C.), refd to. [para. 19].

Jackson and Parkview Holdings Ltd. v. Trimac Industries Ltd. et al. (1993), 138 A.R. 161; 8 Alta. L.R.(3d) 403 (Q.B.), refd to. [para. 21].

Canada Deposit Insurance Corp. v. Cana­dian Commercial Bank (1987), 76 A.R. 271; 50 Alta. L.R.(2d) 1 (Q.B.), refd to. [para. 28].

Sidorsky et al. v. CFCN Communications Ltd. et al. (1995), 167 A.R. 181; 27 Alta. L.R.(3d) 296 (Q.B.), refd to. [para. 28].

Pharand Ski Corp. v. Alberta (1992), 122 A.R. 395 (Q.B.), refd to. [para. 28].

20th Century Television and Appliances Ltd. v. Midnapore Property Investments Ltd. (1991), 120 A.R. 114; 8 W.A.C. 114; 85 Alta. L.R.(2d) 114 (C.A.), refd to. [para. 30].

358427 Alberta Inc. v. Monenco Advisory Services Ltd. et al. (1998), 211 A.R. 386 (Q.B.), refd to. [para. 32].

155569 Canada Ltd. v. 24854 Alberta Ltd. et al. (1999), 247 A.R. 239 (Q.B.), refd to. [para. 34].

Paterson et al. v. Hamilton et al. (1997), 202 A.R. 34 (Q.B.), refd to. [para. 34].

Authors and Works Noticed:

Stevenson, W.A., and Côté, J.E., Alberta Civil Procedure Handbook, p. 457 [para. 31].

Counsel:

K. Rowan, for the plaintiff;

J.T. Casey, for the defendant.

This application was heard on February 22, 2000, before Murray, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on June 29, 2000.