Lakusta Estate, 2010 ABQB 275

Court of Queen ’ s Bench of Alberta Citation: Lakusta Estate, 2010 ABQB 275 Date: 20100422 Docket: DA01 011214, 0801 09493 Registry: Calgary Court File Number DA01 011214 Court Court of Queen’s Bench of Alberta (Surrogate Matter) Judicial District Calgary Estate Name Edward M. Lakusta, also known as Ed M. Lakusta Applicant (Plaintiff) Gloria Lakusta Respondent (Defendant) Judy Martin Action No. 0801 09493 BETWEEN: Judy Diane Martin Applicant (Respondent) - and - Edward M. Lakusta Respondent (Applicant) _______________________________________________________ Reasons for Judgment

of the Honourable Madam Justice E.A. Hughes _______________________________________________________ Background [ 1 ] By letter dated February 18, 2009, the Court was asked by all counsel to both actions to appoint a case management judge to “oversee the ... two actions to resolution.” As a result of the request, I was appointed case management judge by the Chief Justice. [ 2 ] Gloria Lakusta is the wife of Edward Lakusta and Judy Martin and Douglas Lakusta are their children. In July, 2000, Edward Lakusta executed an Enduring Power of Attorney and Personal Directive.

He appointed his daughter, his son and one other as his attorneys under the Enduring Power of Attorney and appointed his son and daughter as his Agents under his Personal Directive. [ 3 ] In March, 2006, Edward Lakusta suffered a series of strokes. In June, 2006, two physicians signed Declarations of Incapability for Enduring Power of Attorney and Declarations of Incapacity under the Personal Directives Act concerning Edward Lakusta.

Soon after this, the third attorney under the Enduring Power of Attorney renounced his appointment. [ 4 ] In December, 2007, Gloria Lakusta filed an application seeking an order terminating the Enduring Power of Attorney and Personal Directive and appointing her, Douglas Lakusta and Judy Martin as guardians and trustees under the Dependent Adults Act . This is the Surrogate Action. [ 5 ] In approximately April, 2008, Judy Martin and her spouse decided to sell their residence in the Calgary area. Registered against the Certificate of Title to the property was a mortgage she had granted to her father in 1991.

In May, 2008, Judy Martin asked Douglas Lakusta in his capacity as one of the Attorneys to sign a discharge of the mortgage without requiring the payment of funds owing thereunder. Douglas Lakusta, acting in his capacity as Attorney for the Estate, requested that the funds be repaid. In August, 2008, Judy Martin brought an application by Originating Notice for, amongst other things, an order discharging the mortgage and advice and direction on her position as one of the Attorneys.

By order of the Court, the mortgage was discharged from the Certificate of Title on the condition that Judy Martin pay into Court the sum of $350,000.00. This is known as the Mortgage Action. [ 6 ] The first case management meeting was held on May 14, 2009. To ensure both actions were resolved quickly, counsel and the Court discussed what steps were necessary to ensure the litigation proceeded expeditiously.

One step identified as necessary was the filing of an Affidavit by Judy Martin in each action as Gloria Lakusta had filed an Affidavit and Douglas Lakusta had filed two Affidavits. [ 7 ] As a result of the submissions of counsel, a Case Management Order was made that included the term: “all affidavits to be filed in either the Court of Queen’s Bench of Alberta (Surrogate Matter), # 11214 or Court of Queen’s Bench of Alberta, # 0801-09493 shall be filed and served on or before June 30, 2009. [ 8 ] Unfortunately, neither the Court nor counsel for the parties addressed the timing of any Reply Affidavits should Judy Martin file an Affidavit in either of the actions. [ 9 ] On June 30, 2009, Judy Martin filed and served her Affidavit.

[ 10 ] Counsel for Douglas Lakusta and counsel for Gloria Lakusta wished to file a Reply Affidavit to Judy Martin’s Affidavit but in light of the Case Management Order and the time prescribed therein, did not have that opportunity. Therefore, counsel for Douglas Lakusta requested the consent of counsel for Judy Martin to file a Reply Affidavit. Counsel for Judy Martin did not provide such consent. As a result of the position of Judy Martin, counsel for Gloria Lakusta and Douglas Lakusta brought an application to file Reply Affidavits to the Affidavit of Judy Martin.

That application was heard on November 19, 2009 and the application was granted. At the conclusion of the application, counsel for Douglas Lakusta and Gloria Lakusta sought costs against Judy Martin. The costs of the motion were reserved pending written argument filed by the parties. Positions of the Parties [ 11 ] Gloria Lakusta and Douglas Lakusta submit that neither Judy Martin nor her counsel provided any reason why Judy Martin would not consent to the filing of Reply Affidavits. Accordingly, they submit this conduct justifies the awarding of solicitor-client costs against Judy Martin.

On the other hand, counsel for Judy Martin submits that the right to file Reply Affidavits was neither discussed nor contemplated and if there are costs, costs should be in the cause. Decision [ 12 ] I have reviewed the transcript of the case management meeting held on May 14, 2009. By this time, the Surrogate Action was over 1½ years old while the Mortgage Action was approximately nine months old. In an attempt to move the litigation of both actions more quickly, the Court set the deadline for the filing of the Affidavits.

Unfortunately, as noted above, neither the Court nor counsel addressed the issue of Reply Affidavits albeit in light of the history of the litigation to that date, it should not have been surprising that Gloria Lakusta and Douglas Lakusta would wish to file Reply Affidavits to Judy Martin’s Affidavit. [ 13 ] Counsel for Judy Martin was entitled to take the position he did with respect to consenting to the filing of Reply Affidavits outside the terms of the Case Management Order.

However, that resulted in the application heard on November 19, 2009. [ 14 ] The general rule is the successful party is entitled to costs, in the absence of special circumstances. Rule 601 of the Alberta Rules of Court provides: 601.

(1) Notwithstanding anything in Rules 602 to 612, but subject to any Rule expressly requiring costs to be ordered, the costs of all parties to any proceedings (including third parties), the amount of costs and the party by whom or the fund or estate or portion of an estate (if any) out of which they are to be paid are in the discretion of the Court, and when deciding on costs the Court may consider the result in the proceeding and (

a) the amounts claimed and the amounts recovered, (

b) the importance of the issues, (

c) the complexity of the proceedings, (

d) the apportionment of liability, (

e) the conduct of any party that tended to shorten or to unnecessarily lengthen the proceeding, (

f) a party’s denial or refusal to admit anything that should have been admitted,

(

g) whether any stage in the proceedings was (

i) improper, vexatious or unnecessary, or (ii) taken through negligence, mistake or excessive caution, (

h) whether a party commenced separate proceedings for claims that should have been made in one proceeding or whether a party unnecessarily separated their defence from another party, and (

i) any other matter relevant to the question of costs. [ 15 ] Douglas Lakusta’s and Gloria Lakusta’s application to file Reply Affidavits proceeded because it was opposed by Judy Martin. Gloria Lakusta and Edward Lakusta were successful in their application. Further, the conduct of Judy Martin did lengthen the proceedings in that the original time line set out in the first Case Management Order could not be met in light of the application to file Reply Affidavits. Accordingly, Gloria Lakusta and Douglas Lakusta are entitled to receive costs of the November 19, 2009 application. [ 16 ] Costs are awarded on the basis of

Schedule C, Column 1 – a contested application. I do not award costs on a Solicitor/Client basis. In Alberta Civil Procedure Handbook - 2009 the authors state at p. 703: Solicitor/client costs will normally be awarded the opposite party in one of six situations only: (

a) because of unusual serious misconduct by the payor in his or her prosecution or defence of the suit; but no solicitor-client costs should be awarded for conduct before suit, (

b) as part of a penalty for contempt, (

c) as a term of granting some indulgence to the payor, such as extending time, or getting an adjournment, and as a way of curing the prejudice to the other side caused by the delay or reversal or course committed by the party getting the indulgence ..., (

d) the payee is a trustee or fiduciary for the payor, (

e) there is a contract between the parties ..., (

f) expropriation proceedings, as provided by statute. [ 17 ] I have concluded that the conduct of Judy Martin does not fall within any these six situations. Thus, I have not made the order for solicitor-client costs.

Dated at the City of Calgary, Alberta this 22 nd day of April, 2010. E.A. Hughes J.C.Q.B.A. Appearances: Terry R. Davis Solicitor for the Judy Martin Garth A. Dymond Solicitor for the Gloria Lakusta Cynthia Amsterdam Solicitor for Douglas Lakusta