RVB Managements Ltd. et al. v. Rocky Mountain House (Town), 2015 ABCA 304

• Judge: Paperny, Watson and Slatter, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: September 28, 2015
• Citations: 2015 ABCA 304;(2015), 609 A.R. 55

RVB Mgmt. v. Rocky Mountain House (2015), 609 A.R. 55; 656 W.A.C. 55 (CA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. SE.090

RVB Managements Ltd. and Lavoy Property Development Ltd. (appellants/plaintiffs) v. The Town of Rocky Mountain House (respondent/defendant)

(1403-0062-AC; 2015 ABCA 304)

Indexed As: RVB Managements Ltd. et al. v. Rocky Mountain House (Town)

Alberta Court of Appeal

Paperny, Watson and Slatter, JJ.A.

September 28, 2015.

Summary:

In 1991, the plaintiff RVB purchased 21.7 hectares of vacant land in the central downtown area of the defendant town. RVB intended to develop the land. In March 1998, RVB sued the town, alleging, essentially, that the town was responsible for increased water flow to the land and the resulting damage. RVB also alleged that the town had caused further damage in lost opportunity costs by delaying and refusing to approve the development of the land unless RVB rectified the water drainage issues. RVB claimed a total of $25 million, including lost opportunity damages of $15,622,816 related to the delays and $1,038,000 in increased construction costs due to wet soil.

The Alberta Court of Queen's Bench, in a decision reported at (2014), 582 A.R. 1, dismissed the action. In an unreported decision, the court awarded the town costs from the commencement of the action to May 2007 on Column 5 plus 25% for inflation and from May 2007, when the claim had been amended to $25 million, double Column 5 plus 25% for inflation. RVB appealed from the dismissal of the action.

The Alberta Court of Appeal, in a decision reported at (2015), 600 A.R. 380; 645 W.A.C. 380, dismissed the appeal. RVB appealed from the order for costs of the trial.

The Alberta Court of Appeal dismissed the appeal.

Evidence - Topic 2277

Special modes of proof - Judicial notice - Particular matters - Money, exchange rates and value of money (incl. inflation) - [See Practice - Topic 7110.4 ].

Practice - Topic 6923

Costs - General principles - Power to award or fix costs - [See Practice - Topic 7110.4 ].

Practice - Topic 6931

Costs - General principles - Discretion of court - [See Practice - Topic 7110.4 and Practice - Topic 7118.1 ].

Practice - Topic 7110.4

Costs - Party and party costs - Special orders - Increase in scale of costs - Inflation - The trial judge awarded the successful defendant costs of the action on Schedule C, increased by 25% to account for inflation - The plaintiff appealed - The Alberta Court of Appeal dismissed the appeal - The amounts in Schedule C had not been updated since 1998 - Since then, the cost of living had increased by about 39% - The 2010 re-enactment of the Rules of Court had not changed the amounts provided in Schedule C - The re-enactment did not limit the trial judge's discretion to set the quantum of costs - The amounts in Schedule C were presumptive amounts only - It was not an error in principle to adjust the costs for inflation - Nor had the trial judge erred in awarding an amount for inflation without evidence being presented as to the rate - The fact that the cost of living varied over time was sufficiently notorious that notice could be taken of it - See paragraphs 7 to 11.

Practice - Topic 7118.1

Costs - Party and party costs - Special orders - Multiplier - The trial judge awarded the successful defendant double Column 5 costs based on the plaintiff's claim for $25 million - The plaintiff appealed - The Alberta Court of Appeal dismissed the appeal - Rule 10.31 continued the broad discretion that trial judges had over costs - Rule 10.31(3)(b) specifically authorized trial judges to award "a multiple, proportion or fraction of an amount set out in any column of the tariff" - It was common practice to award multiples for various reasons - To do so here due to the size of the claim was not an error in principle - The trial judge's order was to be interpreted as implicitly including a cap on costs at full indemnity - The assessment officer was to ensure that there was no over indemnification - See paragraphs 12 to 15.

Practice - Topic 7641

Costs - The tariffs, schedules etc. - General - [See Practice - Topic 7110.4 ].

Cases Noticed:

Conway et al. v. Zinkhofer, [2008] A.R. Uned. 306; 2008 ABCA 392, refd to. [para. 6].

Deans et al. v. Thachuk et al. (2005), 376 A.R. 326; 360 W.A.C. 326; 2005 ABCA 368, refd to. [para. 6].

Dool Estate, Re (2009), 448 A.R. 1; 447 W.A.C. 1; 2009 ABCA 70, refd to. [para. 6].

Nazarewycz v. Dool - see Dool Estate, Re.

N.M. v. F.W. (2004), 348 A.R. 143; 321 W.A.C. 143; 33 Alta. L.R.(4th) 17; 2004 ABCA 151, refd to. [para. 6].

Chisholm v. Lindsay (2015), 600 A.R. 311; 645 W.A.C. 311; 2015 ABCA 179, dist. [para. 9].

Hill v. Hill Family Trust et al. (2013), 561 A.R. 50; 594 W.A.C. 50; 2013 ABCA 313, refd to. [para. 11].

Shillingford v. Dalbridge Group Inc. et al. (2000), 268 A.R. 324; 76 Alta. L.R.(3d) 361; 2000 ABQB 28, refd to. [para. 14].

Counsel:

K.D Wakefield, Q.C., and A.M. Simmonds, for the appellants;

J. McGinnis, Q.C., and G. Joshee-Arnal, for the respondent.

This appeal was heard by way of written submissions received on September 4 and 17, 2015, by Paperny, Watson and Slatter, JJ.A., of the Alberta Court of Appeal. On September 28, 2015, the court delivered the following memorandum of judgment.