Richter v. Chemerinski, 2010 ABQB 717

Court of Queen ’ s Bench of Alberta Citation: Richter v. Chemerinski, 2010 ABQB 717 Date: 20101119 Docket: 0903 15435, 0603 09853 Registry: Edmonton Between: Calvin Richter and Susan Richter Applicants (Plaintiffs) - and - Carson William Chemerinski and Anne Marie Chemerinski, by Her Guardian Ad Litem Gary Romanchuk Respondents (Defendants) Docket: 0603 09853 And Between: Christine Chemerinski and Susan Richter Applicants (Plaintiffs) - and - CIBC World Markets Inc., carrying on business as CIBC Wood Gundy, Anne Marie Chemerinski and Carson William Chemerinski Respondents (Defendants)

_______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Sterling Sanderman _______________________________________________________ [ 1 ] On May 7, 2010, I released a decision involving these parties. The Richters brought applications for

summary judgment in relation to two actions they were involved in with family members. They were successful in relation to both actions. [ 2 ] The last paragraph of the written decision said: [41] The Applicants in both of these applications are entitled to their costs. [ 3 ] The parties appeared in front of Mr. Christensen, the Taxation Officer, to have the Bill of Costs reviewed. An issue arose between counsel at that time. [ 4 ] The Respondents take the position that the Applicants are only entitled to their costs of the two

summary judgment applications. The Applicants take a different position. They take the position that they are entitled to the costs of the two actions. Quite properly, Mr. Christensen referred the matter back to me to clarify this issue. [ 5 ] Logic and common sense dictate that the Applicants should be entitled to costs of the action. Their successful application argued on April 27, 2010 ended two lawsuits. It was my decision that there was no merit to either one of these pieces of litigation. My decision of May 7, 2010 ended them. Consequently, costs of the action are warranted.

That was my manifest intention when I awarded costs. [ 6 ] The Respondents take the position that I cannot make this order at this time. They rely upon the authority of Iverson v. Westfair Foods Ltd. , 1998 ABCA 337 . They point to para. 65 of that decision. It states: 65 The 1990 Order was a final order with respect to the remedy directed. In our view, the Chambers Judge was functus officio in that respect and had no jurisdiction to direct in the 1995 Order that the Class A shareholders sell their shares to Westfair.

The general rule is that a final judgment or order cannot be set aside or varied by the judge who made it, or by a judge of the same court, after it has been drawn up and entered. There are two exceptions: (

I) where there has been a slip in drawing up the judgment or order, and (ii) where there has been an error in expressing the manifest intention of the court: Chandler v. Assn. of Architects (Alberta) , 1989 CanLII 41 (SCC) , [1989] 2 S.C.R. 848 (S.C.C.) , Rule 339. It follows that a judge has no jurisdiction to interpret his own order after it has been drawn up and entered: Canada West Tree Fruits Ltd. v. T.G. Bright & Co. , 1990 CanLII 617 (BC CA) , [1990] 6 W.W.R. 89 (B.C.

C.A.) , leave to appeal to the Supreme Court of Canada denied. [ 1990 CanLII 24 (SCC) , [1991] 2 W.W.R. 1 xvii (S.C.C.)] [ 7 ] The formal orders entered to reflect the decision of May 7, 2010, deal with costs in the following fashion. The first states: 4. The Plaintiffs shall recover their costs of this application from the Defendants Carson William Chemerinski and the Estate of Anne Marie Chemerinski based upon Column 1 of

Schedule “C”. [ 8 ] The second states:

4. The Plaintiffs shall recover their costs of this application from the Defendants Carson William Chemerinski and the estate of Anne Marie Chemerinski based upon Column 2 of

Schedule “C”. [ 9 ] The order drafted by the Applicants and approved by opposing counsel and signed by me only grants costs in relation to the specific applications before the Court. The Respondents take the position that I am functus officio and to allow costs in relation to the entire action would materially change the nature of the orders entered in June of 2010. [ 10 ] In Hansraj v. Ao (#3) , 2003 ABQB 299 , Justice Slatter, as he then was, carefully analyzed the old Rule 339 and how it is to be applied. Beginning at para. 13 he stated: In Ensign Estate v.

Hart (1998), 1998 ABCA 13 (CanLII) , 209 A.R. 392 (C.A.) The Court said of Rule 339: ... This rule is an important exception to the general rule that a final judgment cannot be changed once it is entered. ... the general rule is that once an Order Nisi is passed and entered, the court which passed the order is “functus officio” and cannot set aside or alter the Order Nisi however wrong it may appear to be. Amendments to an entered order can only be done on appeal.

The two exceptions to this rule are: (1) where there has been a slip in drawing up the judgment; and (2) where the judgment as entered does not truly express the intention of the court. Both exceptions apply here; by a slip the order is silent on the disposition of the Privilege Application, and so it does not reflect the intent of the court. The Plaintiffs also argued that Rule 339 could not be used after the order has been entered, and it definitely could not be used after the order was subject to appeal.

The first point is clearly not correct because Rule 339 only has any meaning after a judgment has been entered. Before a judgment is entered, it is nothing more than a draft, and any changes directed by the Court can be made to it: 369413 Alberta Ltd. v. Pocklington (2000), 1999 ABQB 936 (CanLII) , 79 Alta. L.R. (3d) 222 , 17 C.B.R. (4 th ) 305 ; R. v. Badry (1998), 1998 ABCA 7 (CanLII) , 59 Alta. L.R. (3d) 133 , 209 A.R. 321 , [1998] 7 W.W.R. 272 (C.A.) at para 95 . I also note that Rule 339 says that corrections can be made “at any time”.

There is no reason why a correction cannot be made under Rule 339 after an appeal has been launched, and indeed it is important that the trial court make any necessary corrections to ensure that the Court of Appeal has before it an accurate version of what was decided. [ 11 ] This analysis sets out succinctly the two exceptions where an order may be altered. I adopt this analysis without hesitation. Both are present here. [ 12 ] I intended that costs be in relation to the entire actions. There has been an error made in the drafting of the judgment. The matter calls for a correction.

The order that is warranted is one granting costs in relation to the two actions. Heard on the 5 th day of November, 2010. Dated at the City of Edmonton, Alberta this 18 th day of November, 2010.

Sterling Sanderman J.C.Q.B.A. Appearances: Phyllis J. Van Campbenhout for the Applicants (Plaintiffs) Paul V. Stocco for the Respondents (Defendants)