Strategy Summit Ltd. v. Remington Development Corp., (2012) 528 A.R. 273 (QB)

• Judge: Verville, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 19, 2012
• Citations: (2012), 528 A.R. 273 (QB);2012 ABQB 61

Strategy Summit v. Remington Dev. Corp. (2012), 528 A.R. 273 (QB)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. FE.008

Strategy Summit Ltd. (plaintiff) v. Remington Development Corporation (defendant)

(0601 01094; 2012 ABQB 61)

Indexed As: Strategy Summit Ltd. v. Remington Development Corp.

Alberta Court of Queen's Bench

Judicial District of Calgary

Verville, J.

January 24, 2012.

Summary:

Strategy Summit Ltd. entered into an offer to purchase with Remington Development Corporation to purchase a portion of unsubdivided lands. The offer was contingent on Remington obtaining subdivision approval and an environmental report. Remington failed to obtain either within the time frame set out in the offer and refused to grant Strategy's request for an extension. Strategy registered a caveat, and sued for specific performance or damages in the alternative. Remington alleged that the caveat had prevented it from dealing with the lands, and claimed resulting damages by way of counterclaim.

The Alberta Court of Queen's Bench, in a decision reported at (2011), 523 A.R. 329; 2011 ABQB 549, dismissed both Strategy's claim for specific performance or damages, and Remington's counterclaim for damages. In these costs applications, each of the parties argued that it was entitled to solicitor and client costs, or in the alternative substantial party and party costs, because: it was substantially successful in the lawsuit, high costs were reasonably incurred, and the other party unsuccessfully alleged bad faith.

The Alberta Court of Queen's Bench dismissed the applications for solicitor and client costs and for increased party and party costs. The court ordered that each party bear its own costs.

Practice - Topic 7115

Costs - Party and party costs - Special orders - Increase in scale of costs - Difficulty and complexity of proceedings - The plaintiff sought, inter alia, an order declaring that its caveat was validly registered against the defendant's land, and specific performance or damages of not less than $2.5 million - The defendant, by way of counterclaim, sought damages in excess of $25 million, asserting that the plaintiff committed slander of title by filing the caveat - The trial, absent oral argument, took 25 half days, and was an "electronic" trial with almost 500 documents - The trial judge dismissed the claim and the counterclaim - Each side argued that it was entitled to substantial party and party costs, because it was substantially successful in the lawsuit and high costs were reasonably incurred - The Alberta Court of Queen's Bench found that each party should bear their own costs - The trial proceeded in an expeditious manner - Prior steps taken in the litigation were not unreasonable - Both parties were left in the same position they were in prior to engaging in the litigation - In the end, both parties lost - The court agreed with the plaintiff that the counterclaim considerably increased the stakes; although dismissed, it was a serious claim - While a winner might have been entitled to a costs award providing 40% to 50% indemnity or more in the form of a lump sum (as submitted by the defendant), there was no winner here - See paragraphs 29 to 36.

Practice - Topic 7454

Costs - Solicitor and client costs - Entitlement to - Improper, irresponsible or unconscionable conduct - [See Practice - Topic 7462.1 ].

Practice - Topic 7462.1

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Unproven allegations of dishonest or improper conduct (incl. malice) - The plaintiff (Strategy) offered to purchase from the defendant (Remington) a portion of unsubdivided land - The offer was contingent upon Remington obtaining subdivision approval and an environmental report - Remington failed to obtain either within the time contemplated in the offer and refused to grant an extension - Strategy registered a caveat and claimed specific performance or damages - Remington asserted that the caveat prevented it from dealing with the land and claimed damages by way of counterclaim - The trial judge dismissed the claim and the counterclaim - Each party argued that it was entitled to solicitor-client costs - The Alberta Court of Queen's Bench considered the applicable principles in light of each party's assertions that the other acted in bad faith, and found that neither party was entitled to solicitor-client costs - Strategy's conduct did not fall within the rare and exceptional case where solicitor-client costs were warranted - The court disagreed with Remington's submission that Strategy should never have alleged that Remington failed to consider in good faith its request for an extension, as once it did so it exposed itself to solicitor-client costs - Remington's assertion that it suffered lost opportunity costs because of the subdivision was simply rearguing a portion of the case it lost at trial - The $2 million incurred because of the subdivision was as a result of the contract, not the lawsuit, and it was Remington that decided it would not grant the extension - Nor did Remington's conduct warrant solicitor-client costs - Although Remington "may have taken a hard nosed approach", the court was not satisfied that Remington did anything which could be categorized as circumstances constituting blameworthiness - See paragraphs 14 to 28.

Cases Noticed:

Mahe et al. v. Boulianne, [2010] A.R. Uned. 25; 2010 ABCA 74, refd to. [para. 10].

Phinny v. MacAulay et al., [2009] O.T.C. Uned. 759 (Sup. Ct.), refd to. [para. 10].

Evans v. Sports Corp. (2011), 523 A.R. 88; 2011 ABQB 616, refd to. [para. 10].

Cope v. Morton, [2004] B.C.T.C. Uned. 794; 2004 BCSC 1726, refd to. [para. 10].

Jawanda et al. v. Jawanda et al., [2005] B.C.T.C. Uned. 663; 2005 BCSC 1721, refd to. [para. 10].

Conway et al. v. Zinkhofer, [2007] A.R. Uned. 419; 2007 ABQB 2, refd to. [para. 10].

Hamilton v. Open Window Bakery Ltd. et al., [2004] 1 S.C.R. 303; 316 N.R. 265; 184 O.A.C. 209; 2004 SCC 9, refd to. [para. 10].

Buchanan v. Lamoureux et al., [2011] A.R. Uned. 296; 2011 ABQB 256, refd to. [para. 10].

Trizec Equities Ltd. v. Ellis-Don Management Services Ltd. et al. (1999), 251 A.R. 101; 1999 ABQB 801, refd to. [para. 10].

LSI Logic Corp. of Canada Inc. v. Logani, 2001 ABQB 968, refd to. [para. 10].

Calgary (City) v. Alberta (Minister of Municipal Affairs), [2008] A.R. Uned. 472; 2008 ABQB 433, refd to. [para. 10].

Dwyer v. Fox et al. (1996), 181 A.R. 223; 116 W.A.C. 223 (C.A.), refd to. [para. 10].

Johnston v. Law Society of Prince Edward Island (1987), 67 Nfld. & P.E.I.R. 52; 206 A.P.R. 52 (P.E.I.C.A.), refd to. [para. 10].

Waterous Investments Inc. v. Liberton Holdings Ltd. (1996), 183 A.R. 229 (Q.B.), refd to. [para. 10].

Jackson and Parkview Holdings Ltd. v. Trimac Industries Ltd. et al. (1993), 138 A.R. 161; 8 Alta. L.R.(3d) 403 (Q.B.), affd. (1994), 155 A.R. 42; 73 W.A.C. 42; 20 Alta. L.R.(3d) 117 (C.A.), refd to. [para. 10].

Medway Oil and Storage Co. v. Continental Contractors Ltd., [1929] A.C. 88 (H.L.), refd to. [para. 10].

College of Physicians and Surgeons (Alta.) v. J.H. et al. (2009), 468 A.R. 101; 2009 ABQB 48, refd to. [para. 10].

Strategy Summit Ltd. v. Remington Development Corp. (2009), 446 A.R. 312; 442 W.A.C. 312; 2009 ABCA 30, refd to. [para. 21].

Authors and Works Noticed:

Orkin, Mark M., The Law of Costs (2nd Ed. 1987), generally [para. 10].

Counsel:

Graham McLennan, Q.C. (McLennan Ross), for the plaintiff/defendant by counterclaim;

Grant Vogeli (Burnet, Duckworth & Palmer LLP), for the defendant/plaintiff by counterclaim.

These costs applications were heard on January 19, 2012, before Verville, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following memorandum of decision, dated at Edmonton, Alberta, on January 24, 2012.