Bank of Montreal v. Kenneth Robert Cochrane, 2010 ABQB 808

Court of Queen ’ s Bench of Alberta Citation: Bank of Montreal v. Kenneth Robert Cochrane, 2010 ABQB 808 Date: 20101216 Docket: 0901 07347 Registry: Calgary Between: Bank of Montreal Plaintiff - and - Kenneth Robert Cochrane et al Defendant _______________________________________________________ Reasons of Judgment of the Honourable Madam Justice C.A. Kent _______________________________________________________ [ 1 ] Over the past few months, I have heard several interlocutory motions in this action.

I did not deal with costs on any of the applications because I wanted to hear argument from counsel which would help set some guidelines for awarding costs as the action proceeds. The new Rules are now in place. In my view, the new Rules do not change the principles that are applicable to a determination of the appropriate award of costs, but they do set out the matters that I should consider in more detail than the former Rules. The general rule is that the successful party is entitled to costs (Rule 10.29). That general rule is subject to the Court’s general discretion (10.29(1)(a).

The matters which the Court may consider in awarding or varying the amount of costs are set out in Rule 10.33. Those that are relevant to the applications that I have heard are the degree of success, the importance of the issue, the complexity of the action, the conduct of any party, and whether the application was unnecessary, improper or a mistake. Rule 10.31 sets out the considerations that may be relevant to the amount of costs awarded. I may award reasonable costs or in appropriate circumstances indemnity costs or a lump sum in addition to or rather than assessed costs.

[ 2 ] The applications which I heard were: 1. BMO-Sharma defendants - - a motion for severance brought by the defendants - dismissed - a motion for particulars brought by the defendants - granted - a motion for particulars which was partially argued but then referred to Justice Stevens - a motion to stay certain provisions of my orders requiring the filing of a statutory declaration pending appeal - granted until the appeal hearing - a motion to vary Anton Pillar order to allow living expenses - granted 2.

BMO-Lieu defendant - a motion for particulars brought by the defendant - granted - a motion to set aside attachment order - dismissed 3. BMO-Gariepy, 1016388 Alberta Ltd. defendants - a motion for particulars brought by the defendant - granted 4. BMO-Hammoudi, Blatz, Charjit Singh, Fatima Chmoury, Sran and Tah defendants - motions by BMO to strike counterclaim - granted. The counterclaim at issue was identical for all Defendants except that the Sran and Tah Defendants had an additional plea raising different issues. 5.

BMO-Hattoum defendants - motion to strike brought by defendant - motion to strike dismissed but reasons said that defendant entitled to particulars, in a manner to be determined. 6. BMO-Hattoum, Omar defendants - a motion to provide particulars - dismissed [ 3 ] Noone disputed the principle that the successful party in each application should receive costs. The issue on many of these motions was defining success and the appropriate amount of costs. Before dealing with the various motions, it is necessary to set out some guidelines which are relevant to this case. This is a very large action.

The nature of the claim and the defences are not in themselves complex although they are serious, given that the claims are grounded in fraud and conspiracy. The complexity arises because the allegations are brought against many individuals and the defendants are entangled in a variety of ways. That said, the allegations against various groups of defendants are similar. As a result, a decision with respect to one set of defendants on a procedural point may be predictive of the result if other defendants bring the same motion. In some cases several motions were brought during the

same case management meeting. In others, a half-day or day was set aside and briefs were filed. For some motions, multiple defendants represented by different counsel brought the same motion. I need to take care in such circumstances not to overcompensate BMO when it is successful against all applicants. I also need to take care that BMO is not unduly penalized when it is unsuccessful against several applicants, but on the same legal issue. [ 4 ] Three judges will be hearing pre-trial motions. The other judges are not bound by this decision but may wish to apply the general guidelines. So that there is consistency insofar as my decisions are made, I will use

Schedule C and identify the item number for the motion. The column should be used which correlates with the claim against the particular defendant or defendants. I expect most will be in column 4 or 5 but there may be some defendants in other columns. In addition to the item I identify, the successful party will have costs for any examinations on affidavit that were conducted. No disbursements are chargeable. Where a motion is brought by several defendants represented by one counsel, only one set of costs is payable. [ 5 ] The costs award are 1.

BMO-Sharma defendants - a motion for severance brought by the defendants - dismissed - Item 7 (1) to BMO. - a motion for particulars brought by the defendants - granted - Item 8 (1)* to Sharma. - a motion regarding privileged documents which was partially argued but then referred to Justice Stevens - no costs because it was referred to another judge. - a motion to stay certain provisions of my orders requiring the filing of a statutory declaration pending appeal - granted until the appeal hearing - no costs because my stay was only intended to allow the applicants to apply for a full stay before the Court of Appeal. - a motion to vary Anton Pillar order to allow living expenses - granted - Item 7 (1) to Sharma. 2.

BMO-Lieu defendant - a motion for particulars brought by the defendant - granted - Item 8 (1)* to Lieu - a motion to set aside attachment order - dismissed - Item 7 (1) to BMO 3. BMO-Gariepy, 1016388 Alberta Ltd. defendants - a motion for particulars brought by the defendant - granted - Item 8 (1)* to Gariepy and 1016388. 4. BMO-Hammoudi, Blatz, Charjit Singh, Fatima Chmoury, Sran and Tah defendants - motions by BMO to strike counterclaim - granted.

The counterclaim at issue was identical for all Defendants except that the Sran and Tah defendants had an additional plea raising different issues. - Item 8 (1)* * to BMO. 5. BMO-Hattoum defendants - motion to strike brought by defendant - motion to strike / dismissed but reasons said that defendant entitled to particulars, in a manner to be determined.- no costs because there was divided success.

6. BMO-Hattoum, Omar defendants - a motion to provide particulars - dismissed - Item 7 (1) to BMO . [ 6 ] Where the result shows 8 (1)*, only one set of costs is payable by BMO to all the defendants. It should be divided equally among the groups, so that each group receives 1/3 of the whole. Where the result shows 8 (1)**, one set of costs is payable jointly and severally by all the respondents and in addition, one set is payable by the Sran and Tah defendants. [ 7 ] If there are any applications which I have not addressed, counsel should advise me in writing. Heard on the 25 th day of November, 2010.

Dated at the City of Calgary, Alberta this 15 th day of December, 2010. C.A. Kent J.C.Q.B.A. Appearances: Munaf Mohamed Michael D. Mysak Bennett Jones LLP for the Bank of Montreal Timothy C. Platnich Caron & Partners LLP for the Sharma group Norman D. Anderson Shea Nerland Calnan LLP for Richard Gariepy, 1016388 Alberta Ltd.

Matt D. Mitschke Schofield Law Group for Mike Lieu aka Michael Lieu Guy Lacourciere (not appearing) Lacourciere Associates for Gurdev Sran and Preetinder Tah Clive O. Llewellyn Llewellyn Law for Ali Hammoudi Carol and Dale Blatz Charnjit Singh aka Charanjit Singh aka Ranji Singh Fatima Said Chmouri aka Fatima Said Chmoury Stephen Kaczkowski Kaczkowski Law for Kenneth Dale Blatz Brian N. Clark Clark & Associates for Wassim Hattoum, Noel Hattoum Abraham A. Fares Fares Law Firm for Omar