E.T. v. Rocky Mountain Play Therapy Institute Inc. et al.,

• Judge: Prowse
• Neutral Citation: 2015 ABQB 61
• Subject Matter: PRACTICE
• Citation: 2015 ABQB 61,(2015), 611 A.R. 107 (QBM),611 AR 107,(2015), 611 AR 107 (QBM),611 A.R. 107
• Date: 12 January 2015
• Court: Court of Queen's Bench of Alberta (Canada)

E.T. v. Rocky Mountain Play Therapy (2015), 611 A.R. 107 (QBM)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. JA.195

E.T. (plaintiff) v. Rocky Mountain Play Therapy Institute Inc. and Kevin Kwan (defendants) and I.T. (third party)

(1201 07908; 2015 ABQB 61)

Indexed As: E.T. v. Rocky Mountain Play Therapy Institute Inc. et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Prowse, Master

January 23, 2015.

Summary:

The plaintiff had hired the defendant Kwan to provide therapy to his son. He sued Kwan and his employer, alleging that Kwan breached the contract for his services, defamed him, and was negligent. Kwan brought and then abandoned a summary dismissal application. The plaintiff sought indemnity costs (the full amount billed for contesting the dismissal application) and penal costs of $20,000. The plaintiff asserted that the summary dismissal application was "devoid of merit" and that the application was prosecuted "in a disorganized and whimsical manner and was fraught with needless delay."

A Master of the Alberta Court of Queen's Bench awarded the plaintiff enhanced costs (party and party costs higher than Schedule C costs, but less than full indemnity costs). Neither indemnity costs nor penal costs were appropriate.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Practice - Topic 5725

Judgments and orders - Summary judgments - Costs - [See Practice - Topic 7043 ].

Practice - Topic 7043

Costs - Party and party costs - Entitlement - On discontinuance or abandonment - The issue in this case is what costs the court should award the plaintiff against the defendant, who brought and then abandoned a summary dismissal application - A Master of the Alberta Court of Queen's Bench rejected the plaintiff's assertion that higher costs should be awarded on the withdrawal of an application than would have been awarded if the application had been dismissed - "I cannot see any logic to this assertion, which is contrary to public policy. ... This would create an incentive for an applicant to persist in a weak application even if the applicant had come to realize his position was weak. ... In addition, Schedule C of the Rules of Court specifically contemplates abandoned applications. ... Therefore my approach is as follows: if the nature of [the defendant]'s application, or the manner in which he conducted his application, would have resulted in enhanced or indemnity or penal costs against him upon losing his application, then I should award enhanced or indemnity or penal costs against him upon his abandonment of the application." - See paragraphs 13 to 17.

Practice - Topic 7110

Costs - Party and party costs - Special orders - Increase in scale of costs - General - A Master of the Alberta Court of Queen's Bench summarized the circumstances in which a court should consider awarding "enhanced" costs (party and party costs higher than Schedule C costs, but less than full indemnity costs) - See paragraph 24.

Practice - Topic 7470.14

Costs - Solicitor and client costs - Entitlement to - On abandonment or discontinuance - The plaintiff sued the defendant, who he had hired to provide therapy to his son, alleging that he breached the contract for his services, defamed him, and was negligent - He sought the return of counselling fees, general damages of $375,000 and punitive damages of $100,000 - The defendant brought and then abandoned a summary dismissal application - The plaintiff sought indemnity costs (the full amount billed for contesting the dismissal application) and penal costs of $20,000 - He asserted that the summary dismissal application was "devoid of merit" and that the application was prosecuted "in a disorganized and whimsical manner and was fraught with needless delay." - A Master of the Alberta Court of Queen's Bench awarded the plaintiff enhanced costs (party and party costs higher than Schedule C costs, but less than full indemnity costs), due to the inefficiency in which the defendant pursued his dismissal application - The summary dismissal application was not doomed to fail - Even if it was doomed to fail, that was not in itself a ground to award solicitor-client costs - The application was not conducted in a scandalous manner - Neither indemnity costs nor penal costs were appropriate - See paragraphs 25 to 35.

Cases Noticed:

Attila Dogan Construction and Installation Co. v. AMEC Americas Ltd. et al., [2012] A.R. Uned. 763; 2012 ABQB 438, refd to. [para. 18].

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, refd to. [para. 19].

Statutes Noticed:

Rules of Court (Alta.), Schedule C, Division 2, The Tariff, item 7(3) [para. 16].

Counsel:

Ravi Jadusingh (Code Hunter LLP), for the plaintiff;

James W. Rose, Q.C. (Rose LLP), for the defendant, Ken Kwan.

This costs matter was heard on January 12, 2015, before Prowse, Master, of the Alberta Court of Queen's Bench, who delivered the following judgment and reasons, dated at Calgary, Alberta, on January 23, 2015.