Grant v. Grant, 2010 ABQB 735

Court of Queen ’ s Bench of Alberta Citation: Grant v. Grant, 2010 ABQB 735 Date: 20101230 Docket: 4801 143613 Registry: Calgary Between: Brian Tennent Grant Plaintiff - and - Lila Grant Defendant _____________________________________________________ Memorandum of Decision re Costs of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Mr. Grant asks for costs of the special chambers hearing on the basis that he was substantially successful. Ms. Grant proposes that no costs should be awarded because the issue before the court was novel; as she engagingly put it, in this special chambers application “we were not ploughing a field of trite law”. [ 2 ] Mr. Grant is entitled to costs: he was substantially successful on the application and the issue was not “so novel” as to shield Ms.

Grant from the general costs rule. [ 3 ] Other than in a class action situation, where the New Rules specifically mention the novelty of the case as a potential costs factor (NR 10.32(b)), the novelty of an issue remains a very exceptional basis on which to depart from the usual cost rules. Here, although the court itself commented on the relative lack of guidance in the case law on the pertinent question, it also quoted extensively

from an earlier decision - itself having been cited by Ms. Grant - which outlined in an elaborate way the process of analysis that had to be undertaken in cases of this type. In that sense, therefore, although the specific example of compensation had not been the subject of litigation, the principle directing distribution was no longer novel. Therefore, the usual cost rules apply. [ 4 ] Mr. Grant obtained substantial success on the application; although there was some distribution of the funds made in relation to spousal support, the main issue before the court was the ownership of the insurance proceeds.

Cases and authority cited [ 5 ] By Mr. Grant: B.E. Kennedy Design Ltd. v Kibo 2001 ABQB 32 , [2001] A.J. No. 47 [ 6 ] By the court: General Electric Capital Canada Inc. v Canada 2010 TCC 490 , [2010] T.C.J. No. 402; Conacher v Canada (Prime Minister) 2010 FCA 131 , [2010] F.C.J. No. 701; Prairie Centre Credit Union Ltd. v River Ridge Cattle Corp. 2010 SkQB 135, [2010] S.J. No. 204 ; Nelson v. 1153696 Alberta Ltd. , 2010 ABQB 164 ; Primary Response Inc. v 1241676 Ontario Inc. 2010 ONSC 5077 , [2010] O.J. No. 3876; Humphrey (Re) 2010 ABQB 502 , [2010] A.J.

No. 870; Aquafor Beech Ltd. v Whyte 2010 ONSC 3746 , [2010] O.J. No.2719; Sioux Lookout (Municipality) v Canada (Attorney-General ) 2010 ONSC 3721 , [2010] O.J. No. 2773; S.S.L. v J.W.W. 2010 BCCA 281 , [2010] B.C.J. No.1053; 1. Background [ 7 ] In re-reading the decision which is the basis of this application, see 2010 ABQB 553 , I realize that I made a typing error in para. 32 where I mistakenly typed “is” instead of “if”. The paragraph should read as follows: Ms.

Grant only has an insurable interest in the health of her husband if she accepts the proposition that his injury causes a loss to both spouses; failing that, she must renounce the proceeds because she has no insurable interest in Mr. Grant. [ 8 ] Before the application was actually heard, there was an appearance by the parties to deal with an adjournment. The costs of the adjournment application were not dealt with at the time, and are included in this application. 2.

General principles regarding the assessment of costs where it is alleged that the matter was novel [ 9 ] It is well established that: - a court has discretion in the matter of costs, although it must act judicially in departing from the general rule respecting costs; - the general rule is that costs follow the event, i.e. the winner gets costs and the loser pays them; and, - a court can depart from the general costs rule for example in public interest litigation or where the issue is novel.

Indeed, the principle relating to novelty is often made explicit in the Rules of Court relating to costs, although there was no such explicit reference to novelty in the Alberta Rules at the time this application was brought. [ 10 ] A relatively recent assessment of the principles underlying novelty can be found in Sioux Lookout :

Novel Litigation 14 The municipality submits that no costs should be awarded because the issue before the court was novel or it represented public interest litigation brought in good faith. In support of this argument it relies on Kors v. Toronto (City), 2006 CarswellOnt 8678, [2006] O.J. No. 3237 (S.C.J.), para. 3 and Mahar v. Rogers Cablesystems Ltd., 1995 CanLII 7129 (ON SC) , 1995 CarswellOnt 4279, [1995] O.J. No. 3711 (Gen.

Div.), para.5. 15 At para. 5 of Mahar, Orkin, The Law of Costs, looseleaf (Aurora, Ont.: Canada Law Book Inc., 2001) at 1 - 15 is cited with approval as follows: An action or motion may be disposed of without costs where the question involved is a new one not previously decided by the courts on the theory that there is a public benefit in having the court give a decision; or where it involves the

interpretation of a new or ambiguous statute; or a new or uncertain or unsettled point of practice; or where there were no previous authoritative rulings by courts; or decided cases on point; or where the application concerned a matter of public interest and both parties acted in complete good faith ... 16 Here, the case law concerning jurisdiction over roads has evolved to the point where counsel made legal argument based on the jurisprudence and applicable statutes. Some of the argument was taken up with applying or distinguishing the case, Clark v. North Kawartha (Township), (2009), 69 M.P.L.R. (4th) 146 (Ont. S.C.) , aff'd in 2010 ONCA 185 . Along with

interpretation, the court was asked to apply the facts to the law. In my view, the substance of the litigation was not novel; nor did it constitute public interest litigation. This litigation proceeded on the basis of self-interest. The municipality did not want to be saddled with the cost of maintaining these particular roads, which it hoped would be borne by the province. NNEC and Lac Seul, as users of the roads, wanted to ensure the roads were maintained. Canada maintained a watching brief over its interests. [ 11 ] Novelty will often be conceded by the parties: Humphrey (Re) .

When the parties concede novelty, they usually agree that there will be no costs. Although there was no claim for costs in Ms. Grant’s application, there was no concession that costs would not be requested. [ 12 ] Other than in class actions, which involve unique features tending to the resolution of public policy issues, it appears to be relatively rare that a court will deny costs of the basis of novelty.

Indeed, I said as much in Kibo : 16 In the absence of an unusual circumstance, a successful party is entitled to costs; or, as Stevenson & Cote put it "costs are to be denied only for good reason, and cannot be denied a successful party guilty of no misconduct". The plaintiff argues that the unusual circumstance in this case is that the matter before the court was novel. 17 Costs have been denied to a successful litigant in a test case (Clareview Rental Project v. Dockery (1990), 1990 CanLII 5607 (AB KB) , 78 Alta. L.R. (2d) 106 at 118 (Q.B.)).

There is even case law suggesting that if a citizen sues in the general interest and not merely for his personal benefit, and in good faith, costs may not be awarded. However, these cases are rare. It will be recalled that our Court of Appeal held in Friends of Oldman River Society v. Minister of Environmental Protection (1996), 1996 ABCA 136 (CanLII) , 181 A.R. 306 that even where the case is novel and important to the public, and the loser stood to make no money, the judge might make the loser pay costs. Also, the Supreme Court of Canada held in Coronation Insurance Co. v.

Taku Air, 1991 CanLII 16 (SCC) , [1991] 3 S.C.R. 622 that it was proper to award some costs to a private individual where the opposing party appealed in order to settle the law for its industry.

Costs are meant to provide discipline in civil litigation and courts are reluctant to relieve litigants from the strictures of that discipline. [ 13 ] In this same context, I observe that the New Rules, which came into effect on November 1, 2010, just days before this motion was argued, make explicit reference to the treatment of “novel” cases, but they do so in the specific context of class actions: see N.R. 10.32 (b). [ 14 ] The tendency which I noted in Kibo appears to me to have continued since that time.

The only decisions I could find, during the course of an admittedly cursory search, amongst the dozens of decisions which referred to the possibility of avoiding costs in novel costs, in which costs were not actually awarded because of the novelty of the application are:

- Conacher which related to a decision on Democracy Watch’s application for a declaration that the Prime Minister could not ask the Governor General to dissolve Parliament; - Prairie Centre Credit Union where there was an issue about personal guarantees not having been witnessed in the proper way; and, - Nelson which involved the width of land dedicated as a highway. [ 15 ] In comparison to these relatively rare cases where no costs were ordered, a court has declined to shield a losing party from the general rule because the matters in that case were not “so novel” as to justify such a departure: Aquafor Beech . [ 16 ] A similar lack of enthusiasm for depriving a successful party of costs can be seen in General Electric Capital Canada , (although I have not found that line of cases cited anywhere but in the tax court): 23 Counsel for the Respondent argued strenuously that I should adhere to the principle enunciated previously in some of the judgments of my current and former colleagues, namely that this Court should respect the principle that there should be no departure from the tariff, absent special circumstances justifying solicitor-client costs relating to the conduct of the parties or their counsel during the litigation.9 As stated by Bowman J., as he then was, in McGorman et al. v.

The Queen, 1999 CanLII 36738 (TCC) , 99 DTC 591 (TCC): 13 I shall endeavour to set out briefly my views on how the costs should be awarded in these cases. Obviously, the court has a fairly broad discretion with respect to costs, but that discretion must be exercised on proper principles and not capriciously. For example, the mere fact that a case is novel, unique, complex or difficult, or that it involves a great deal of money is not a reason for departing from the tariff, which, generally speaking, should be respected in the absence of exceptional circumstances.

I shall not repeat what I said about awarding solicitor and client costs in Continental Bank of Canada et al. v. The Queen, 94 DTC 1858 at page 1874 . 14 Do exceptional circumstances exist here that would justify an award of solicitor and client costs? It is true the cases were important and difficult and they raised a wide variety of legal and ecclesiastical questions requiring the assistance of experts.

This in itself does not warrant solicitor and client costs. [ 17 ] In order to benefit from costs protection, a case must involve truly novel issues, not “merely” ones which are fundamental: Primary Response Inc. 3. Application of the general principles to this case [ 18 ] Mr. Grant should not be deprived of his costs. [ 19 ] I have concluded that the task of the court in this case was not to decide a novel issue, but to apply an existing approach to a new set of facts. As the court put it in S.S.L. : 3 Firstly, we do not accept the respondent's proposition that this appeal raised novel issues of law.

In our view, this Court was seeking only to clarify the approach to be taken to mobility issues in factual circumstances that differed from those considered by the Supreme Court of Canada in Gordon v. Goertz, 1996 CanLII 191 (SCC) , [1996] 2 S.C.R. 27. [ 20 ] Here, Justice Watson had earlier set out a detailed blueprint both of the underlying principles that apply in situations such as the one the parties faced and of the analysis which a court should undertake in that type of situation. Therefore, the situation here was novel as to the facts, but not novel as to principle. [ 21 ] Mr.

Grant enjoyed substantial success on the application: although there was also an issue of spousal support, on which there

was, in the event, no opposition to an interim distribution, the issue that formed the real contention between the parties was the ownership of the policy proceeds on which Mr. Grant was successful. [ 22 ] Mr. Grant is entitled to the costs of the adjournment application, which had been unreasonably refused, and of the special chambers application, on Column 1 as this is a divorce matter.. 4. Costs of the costs hearing [ 23 ] If the parties are not agreed on the costs of the costs hearing, I may be spoken to within 30 days of the release of this decision. Heard on the 4 th day of November, 2010.

Dated at the City of Calgary, Alberta this 23 rd day of December, 2010 . J.B. Veit J.C.Q.B.A. Appearances: E. Bruce Corenblum/Lirenman Peterson for Ms. Grant Kim Reinhart/Donlevy Reinhart for Mr. Grant