Alberta Treasury Branches v. Weatherlok Canada Inc., 2011 ABQB 251

Court of Queen ’ s Bench of Alberta Citation: Alberta Treasury Branches v. Weatherlok Canada Inc., 2011 ABQB 251 Date: 20110505 Docket: 0303 22127 Registry: Edmonton Between: Alberta Treasury Branches Plaintiff - and - Weatherlok Canada Ltd., Mark Wesley Trinier also known as Mark Trinier, Deborah Ellen Trinier also known as Debbie Trinier, Donald Shurniak and Debbie Shurniak Applicants/Defendants/Judgment Assignees, Respondents/Defendants/Judgment Debtors _______________________________________________________ Memorandum of Decision on Leave to Appeal Application of the Honourable Mr. Justice D.R.G.

Thomas _______________________________________________________ [ 1 ] This memorandum deals with an application for leave to appeal by the Triniers in respect to my decision in Alberta Treasury Branches v. Weatherlok Canada, 2011 ABQB 15 , which had overturned a costs award made by the Taxing Officer against the

Shurniaks. [ 2 ] At para. 23 of Alberta Treasury Branches , supra , I emphasized that: As a matter of law an award of solicitor-client costs is a departure from the norm and should only be granted when the parties either have come to a mutual agreement that costs on that basis should be paid (a “contractual entitlement”) or when a Judge of this Court or a Master orders them (a “judicial entitlement”): Arbitus Leasing Ltd. v. X-Zibit A Inc ., 2006 ABQB 764 , 405 A.R. 288 at paras. 18 - 19 [ Arbitus ] . [ 3 ] Based on the application of the principles stated above as applied to the evidence, I allowed the appeal by the Shurniaks and held that: (

a) There is no evidence that the Triniers were assigned any of the rights of the Alberta Treasury Branches (“ATB”) in respect to the collection of costs under the Continuing Guarantee. Instead, pursuant to the Assignment the Triniers were assigned the Default Judgment and the Judgment Debt. The Triniers enjoy no contractual entitlement to solicitor-client costs based on the Continuing Guarantee as against the Shurniaks: See para. 29; (

b) The Triniers do not enjoy a contractual entitlement to solicitor-client costs under either the Default Judgment or the Assignment: See para. 32; (

c) Since my 2008 Order awarding solicitor-client costs was premised on the representations made by Mr. Moroz (counsel for the Triniers) but the correct fact remains that the wording of the underlying documents (i.e. both the Default Judgment and the financing documents) do not support what he was saying to me that the documents contained terms entitling his clients to solicitor-client costs, no costs other than party-party costs should be payable in respect to that January 25, 2008 appearance: See para. 34; (

d) Following a review of the very brief exchange between Mr. Moroz and Lewis, J. on October 30, 2007, there is no clear statement by Lewis, J. that he was ordering solicitor-client costs in respect to the two October 2007 appearances. Accordingly, I concluded that Lewis, J. was not ordering solicitor-client costs and his statements provide no judicial entitlement to solicitor-client costs on the part of the Triniers: See para. 37; and (

e) When the parties appeared before the Taxing Officer on three occasions the Triniers had neither contractual nor judicial entitlements on which they could base a claim to solicitor-client costs for most of the steps taken in the Action after receiving the benefit of the Default Judgment through the Assignment. Further, the Taxing Officer may have thought that he was following the directions of two Judges of this Court, but that was an error.

He erred in awarding solicitor-client costs and his decision is quashed: See para. 38. [ 4 ] On February 9, 2011 the Triniers filed a notice of appeal to the Alberta Court of Appeal in respect to the Order arising from my decision in 2011 ABQB 15 .

Apparently upon filing, counsel for the Triniers was advised by the Case Management Officer at the Alberta Court of Appeal that the appeal dealt with costs only and that leave was required pursuant to Rule 505(3) of the Alberta Rules of Court . [ 5 ] In this application the Applicant Triniers seek a declaration that leave is not required or, in the alternative, that leave to appeal should be granted. They argue that the appeal deals with more than the issue of costs and includes questions about the jurisdiction of the Registrar or Clerk to settle and sign minutes of orders.

They argue that the Court should declare that leave is not required. [ 6 ] Alternatively, the Triniers argue that leave should be granted because they have satisfied each of the elements of the four- part test set out in Huang v. Drinkwater , 2005 ABQB 272 at para. 4 . They submit that they have a good and arguable case having enough merit to warrant scrutiny by an appellate court based on the fact that the case raises an issue of law, including the

interpretation of the Rules of Court : Philips v.Cowan , 2007 ABCA 101 at para. 4 ; Berube v. Bobier , 1999 ABQB 13 at paras. 19 & 28 . Further, they contend that the issues involved are important in general or to the parties, especially as it relates to whether or not there is a distinction between an assignment of judgment and a judgment vis-a-vis the application of the decision in Arbitus . They also argue that the appeal has practical utility in determining the ability of this Court to revisit its award of costs; and that any delay that may have occurred in this case is due to the actions of the Respondent Shurniaks.

[ 7 ] The Shurniaks submit that this is not a case that requires leave to appeal as the appeal is not as to “costs only”. They say that the Applicant Triniers seems to be appealing all of the issues that arose in the decision reflected in 2011 ABQB 15 , including the revisiting of some Orders and the overturning of the Taxing Officer’s decisions with respect to the entry of the original Orders of Mr. Justice Lewis. In

summary, the Shurniaks have no objection to either a declaration that leave is not required or the granting of leave to appeal as sought by the Applicant Triniers. [ 8 ] In my opinion, the central issue in my decision in 2011 ABQB 15 was whether or not the Triniers are entitled to the solicitor- client costs which they claim. Thus, the appeal of that decision by the Applicants could well be fundamentally characterized as one about costs only. However, the determination of this costs issue is interwoven with a number of underlying questions of law.

In the result, I conclude that the appeal regardless of whether it is in respect of costs only, or otherwise, deserves the grant of a leave to appeal given those underlying questions of law. I am also satisfied that the Applicants have met the test for the grant of leave to appeal in this application. [ 9 ] Accordingly, the application for leave to appeal the Order arising from my decision of January 10, 2011 is granted for the consideration and determination of the following questions: (

a) Can the Taxing Officer as the Clerk of Court award solicitor-client costs when a Judge of this Court or a Master has not ordered them; or where the underlying documents do not contain terms entitling parties to solicitor-client costs? (

b) Does the jurisdiction of the Registrar or Clerk to settle and sign minutes of orders extend to ambiguous or unclear statements of a judge of this Court on the issue of judicial entitlement to solicitor-client costs? (

c) Does the scope of jurisdiction of the Registrar or Clerk extend to settle, sign and enter orders more than one year after its pronouncement except by leave of the Court, to be obtained upon notice pursuant to the Alberta Rules of Court ? [ 10 ] No costs are awarded on this application. Applications dealt with in writing with materials filed on March 11 and 23, 2011 Dated at the City of Edmonton, Alberta this 5 th day of May, 2011. D.R.G. Thomas J.C.Q.B.A. Appearances: Mr. Norman Anderson (Shea Nerland Calnan LLP)

for the Applicant Triniers Mr. Greg Lintz for the Respondent Shurniaks