Botar v. Mainstreet Equity Corp., 2010 ABQB 792

Court of Queen ’ s Bench of Alberta Citation: Botar v. Mainstreet Equity Corp., 2010 ABQB 792 Date: 20101213 Docket: 0903 18860, 0903 19276 Registry: Edmonton Between: Andrew S. Botar Applicant - and - Mainstreet Equity Corp. Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice J.J. Gill _______________________________________________________

Summary [ 1 ] The claims of the Applicant relating to a residential tenancy were dismissed with costs. As requested both parties filed written submissions on the issue of the amount of costs that should be awarded. Issue

[ 2 ] What amount of costs should be awarded? Position of the Respondent [ 3 ] The Respondent submits that an award of costs plus disbursements on a party and party basis to be taxed is appropriate. It submits that

Schedule 2, Division 2, Column 2 of the Alberta Rules of Court apply since the Applicant’s claims total approximately $75,000. [ 4 ] The Respondent notes that: (

a) The Applicant was completely unsuccessful at the trial of the action; (

b) The Respondent was completely successful at the trial of the action; (

c) The Applicant unnecessarily filed the actions separately then subsequently filed an application to have the actions tried together; (

d) The Applicant has filed various applications that were unnecessary and improper or a mistake, and as a result the Court has issued a number of cost awards against the Applicant; (

e) The Respondent had to issue subpoenas to his witnesses to attend the trial of the actions and paid conduct money as required; (

f) Two of the Respondent’s witnesses both former employees of the Respondent reside out of Province. The Applicant withdrew the allegations against one of those witnesses during trial.

As a result this witness did not testify and the Respondent threw away conduct money for attendance at trial of this witness Position of the Applicant [ 5 ] In his written submissions the Applicant notes that he was not and will not be able to pay any amount of costs with respect to these actions because he is impecunious and on a fixed income. [ 6 ] The Applicant submits that: · He has no real assets liquid or otherwise of any real value; he only has his personal possessions. · Since November 1995 the Applicant was and is a recipient of AISH benefits.

The Applicant’s only source of income is his AISH benefits in the amount of $1,188 per month. Out of that amount the Applicant’s rent is paid in the amount of $350 to the Respondent. · He refers to a number of previous Orders relating to these matters where costs were either awarded against him or the issue of costs was deferred. The outstanding costs award are in the amount of $1,800.

[ 7 ] The Applicant requests one of two Orders: 1. In the event that the Alberta Court of Appeal decides to hear the Applicant’s appeal with respect to these two actions that the issue of all costs with respect to the actions be determined by the Alberta Court of Appeal; or in the alternative 2. In the event that the Court of Appeal decides not to hear the Applicant’s appeal with respect to the two actions then all of the costs with respect to these two actions will be set at $1,800 in total including all disbursements and GST. In that event he seeks an Order permitting him to pay $100 per month for 18 months.

Decision [ 8 ] Taking into account the relief claimed by the Applicant and the Applicant’s financial circumstances, I find that the appropriate level of costs to be awarded is party and party costs and disbursements, pursuant to Column 1 of

Schedule C. The costs to be taxed if necessary. Heard on the 25 th to the 28 th day of October, 2010. Written submissions provided on November 30 and December 1, 2010. Dated at the City of Edmonton, Alberta this 13 th day of December, 2010. J.J. Gill J.C.Q.B.A. Appearances: Andrew S. Botar, Applicant Appeared on His Own Behalf Christopher D.C. Ruttkay

Warrent Tettensor Amantea LLP for the Respondent