Novotny v. LePan, 2011 ABQB 272

Court of Queen ’ s Bench of Alberta Citation: Novotny v. LePan, 2011 ABQB 272 Date: 20110419 Docket: 4801 137319 Registry: Calgary Between: Wendy Jane Novotny Plaintiff - and - Craig Wendell LePan Defendant And Between: Wendy Jane Novotny Plaintiff - and - Craig Wendell LePan Emily McCann FLIPP Advertising Inc. Defendants _______________________________________________________

Reasons for Decision of the Honourable Mr. Justice P.R. Jeffrey _______________________________________________________ [1] In the divorce action between Novotny and LePan, this Court recently ruled on an interlocutory application: 2011 ABQB205. The parties now seek determinations regarding the payment of costs associated with that proceeding. [2] Rule 10.29(1) says in part: A successful party to an application [...] is entitled to a costs award against the unsuccessful party, and the unsuccessful party must paythe costs forthwith, notwithstanding the final determination of the application [...] subject to (

a) the Court’s general discretion under rule 10.31 [...] [3] Novotny applied to restrict LePan’s counsel from acting for all Defendants. LePan succeeded in the result. Novotny arguesthat in this case I should exercise my discretion to override the general rule that LePan recover his costs from her because success wasdivided and because the case was novel. [4] Novotny says success was divided because she prevailed on a number of the disputed premises she advanced. Thosepremises led, she had argued in the original application, to the specific legal remedy for which she had applied.

The Court disagreed thatthe conclusion of law followed from those premises, but Novotny says that since the Court did agree with the contested premises,success was nevertheless divided. [5] At times the Court will apportion or selectively award costs. In Jackson v. Trimac Ltd., (1994), 1994 ABCA 199 ,155 A.R. 42 (C.A.), the Alberta Court of Appeal wrote at para. 28: The trial was long and hard fought, but the defendants say that many days of it were spent on issues on which they won, and so that partof the trial was not their doing.

However, the issues on which they won were procedural or evidentiary, not substantive. While trialjudges sometimes do apportion results [...], issue by issue, it is doubtful that a trial judge must do so. Rule 601 gives him a wide scope todecide. [6] In my view this is not an appropriate case for a selective apportioning of costs, issue by issue. First, in this case a singleapplication was brought upon which LePan succeeded.

This interlocutory matter did not involve a number of applications brought by oneor both of the parties, to which each party succeeded on one or some of the various applications and failure on one or some of the others.Second, costs are to provide, among other things, a discipline for parties bringing to the Court matters that need not have been brought.Just because a party is right on a series of premises does not mean there should not be a costs award against the losing party that askedthe Court to draw an incorrect conclusion from those premises. [7] There was a degree of uniqueness to the application.

Neither party could offer the Court any binding precedent or any otherjurisprudence as guidance. However, an absence of prior judicial treatment of an issue does not necessarily mean that the point warrantsfreedom from any costs consequence. [8] I am also assisted regarding costs in more unique situations by the decision of Justice Veit in Broumas v. Broumas, 1998ABQB 782, 230 A.R. 357, which states at para. 16:

[...] While it is true that the court may relieve a losing party from the usual obligation to pay costs because the issues under scrutiny were novel, that discretion is only exercised in truly exceptional situations where the parties are clearly running a test case. In every motion and every trial, the decision is, to some extent, unique to the situation before it; yet, we expect parties to make reasonable assessments of their positions even in situations where no precedent applies directly. This must be so because if there were a precedent directly on point, obviously the parties should not be in court at all.

If a party were of the view that it should not have to pay costs even if it loses, it might be wise for that party to make some statement to that effect before the hearing is completed; otherwise, the court may be left with the impression that if the decision had gone the other way, the party might well have asked for costs. Nor did this motion proceed as a test case; the parties merely advanced their positions as on any contested motion for child or spousal support.

This is a situation in which the parties should be subject to the discipline of costs. [ 9 ] This case had greater novelty than a situation of unique facts but settled law, as appeared to be the case in the Broumas matter before Justice Veit (a “contested motion for child or spousal support”). But this case was not a test case nor a matter for which the applicant upfront indicated that because of its novelty whichever party might ultimately lose ought not to suffer the burden of bearing the costs of the successful party.

For these reasons I do not regard the novelty of the Novotny action as being sufficient to relieve her of the obligation under the Rules to pay costs. [ 10 ] Therefore, Novotny must pay the costs of LePan. The parties also could not agree on the amount of costs that should be awarded and whether Ms. Novotny might be relieved of the obligation to pay them forthwith on the basis of hardship. [ 11 ] The subject application was originally scheduled to proceed in morning Chambers, along with five other competing applications between the parties, but was adjourned to a written process.

Therefore no incremental attendance was necessitated for oral argument. The parties did have to convene a couple of telephone conference calls with the Court on procedural matters arising in the course of presenting positions in written form to the Court.

The novelty of the issue as aforementioned required counsel to invest greater time on research and formulating written submissions. [ 12 ] In my view the matter was not more complex substantively or more protracted procedurally than an earlier dispute the parties brought before Justice Nation of this Court and to which each of the parties alluded for comparison purposes in their written submissions. Justice Nation awarded costs in the sum of $2,000 on that occasion, payable by LePan to Novotny. The matters before Justice Nation required two separate appearances for oral argument.

Based on all of these factors, and in the interest of alleviating the parties of any further costs they would incur in exchanging bills of costs or assessments or taxations of same, pursuant to Rule 10.31, I award LePan costs of $1,400. [ 13 ] Based upon the information provided to me, however, I am relieving Ms. Novotny from the obligation of paying these costs forthwith. They shall be payable from out of Novotny’s share of the matrimonial property, at such time as its division is determined by this Court or agreed upon between the parties.

I prefer this to reducing arrears allegedly owing by LePan since, first, the parties disagree as to whether there are any arrears of support owed by LePan to Novotny. Second, the parties inform me that the issue of arrears shall soon be before this Court for determination. If that matter were to be determined adverse to Ms. Novotny, then she would find herself obliged to pay these costs much sooner than when matrimonial property is divided and, apparently, without any incremental source of funds from which to do so. Heard on the basis of written submissions received the 7 th , 11 th and 14 th days of April, 2011.

Dated at the City of Calgary, Alberta this 19 th day of April, 2011.

P.R. Jeffrey J.C.Q.B.A. Appearances: Tamasine I. Davies Soby Boyden Lenz for the Plaintiff Arthur H. Wenngatz Caron & Partners LLP for the Defendants