Kent v. Martin, 2011 ABQB 163

Court of Queen ’ s Bench of Alberta Citation: Kent v. Martin, 2011 ABQB 163 Date: 20110314 Docket: 0801 08414, 0901 16638 Registry: Calgary Between: Arthur Kent Plaintiff - and - Don Martin, the National Post Company, Canwest Publishing Inc., National Post Holdings Ltd. and Canwest Media Works Inc. Defendants And Between: Arthur Kent Plaintiff - and - Kristine Robidoux, Q.C. and Does 1-10 Defendants _______________________________________________________ Reasons for Judgment on Costs of the Honourable Mr. Justice R.

Paul Belzil _______________________________________________________ [ 1 ] On August 3, 2010 I granted an order striking out a Statement of Claim against Kristine Robidoux Q.C. in action 0901 16638. [ 2 ] In brief compass, my order was granted because she was sued following the examination for discovery of Don Martin, a

Defendant in action 0801 08414 who disclosed that she was the source of confidential information which Martin used to write articlesalleged to be defamatory of the Plaintiff. [3] In my Reasons for Judgment I held that the action against Robidoux was filed in breach of the implied undertaking not to useinformation obtained during litigation for a collateral purpose and without seeking leave of the Court to bring action against her.

Iconcluded that the breach of the implied undertaking was intentional and flagrant. [4] On March 8, 2010 the issue of costs was argued. [5] Counsel for the Defendants submit that a deliberate, flagrant breach of the implied undertaking must attract a punitive awardof costs and requests solicitor client costs or in the alternative a multiple of party party costs or in the further alternative a lump sumaward of costs. [6] Counsel for Robidoux has submitted a solicitor client bill of costs in the amount of $25,426.50 together with disbursementsand GST. Single

Schedule C Column 3 taxable fees would be in the amount of $4,500, excluding costs for this application, together withdisbursements and GST. [7] Counsel for the Defendants in action 0801 08414 did not submit a solicitor client bill of costs but for the purposes of thisapplication I am assuming that the amount would be approximately the same as the amount submitted by Robidoux’s counsel resulting ina total solicitor client costs claim of approximately $50,000 together with disbursements and GST. [8] Counsel for the Plaintiff, while acknowledging the breach of the implied undertaking, submitted that an award of party partycosts would be appropriate. [9] It is trite that costs are always in the discretion of the Court but in the normal course, costs are awarded to the successfullitigant on a party party basis absent rare and exceptional circumstances. [10] Rules 10.30, 10.31 and 10.33 dealing with costs are broadly drafted to provide for ample latitude in awarding costs. [11] In LSI Logic Corp. of Canada, Inc. v.

Logani 2001 ABQB 968 it was observed at para. 7 that

Schedule C costs are not to beapplied mechanically in every case. [12] In Jackson v. Trimac Industries Ltd. (AB KB), [1993] A.J. No. 218 at para. 22 it was observed that anaward of solicitor client costs requires rare and exceptional circumstances. [13] In that case the court identified a number of types of behaviour by a litigant which might be so characterized up to andincluding a fraud on the court. [14] The judgment in Jackson v.

Trimac clearly recognizes that the qualitative seriousness of a misconduct by a litigant must bescrutinized in deciding the issue of costs. [15] In this factual context there was one breach of the implied undertaking but no other litigation misconduct on the part of thePlaintiff.

[ 16 ] Accordingly, my costs decision must be informed by the need to sanction the breach of the implied undertaking while recognizing that this is not a case of egregious, ongoing conduct by a litigant. [ 17 ] In my view, the appropriate balance is achieved by awarding Robidoux Double Column 3

Schedule C costs, including costs for this application, in action 0901 16638 and making the same award to the Defendants in action 0801 08414. In each action the successful parties are also entitled to claim disbursements and GST. Heard on the 8 th day of March, 2011. Dated at the City of Edmonton, Alberta this 14 th day of March, 2011. R. Paul Belzil J.C.Q.B.A. Appearances: Gabor Zinner / Michael Bates c/o Zinner Law Office for the Plaintiff G. Scott Watson Parlee McLaws for the Defendants in action 0801 08414 David M. Pick Scott Venturo LLP for Kristine Robidoux, Q.C. in action 0901 16638