Kent v. Martin, 2011 ABQB 675

Court of Queen ’ s Bench of Alberta Citation: Kent v. Martin, 2011 ABQB 675 Date: 20111108 Docket: 0801 08414 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 _______________________________________________________ Reasons for Judgment on Costs of the Honourable Mr. Justice D.K.

Miller _______________________________________________________ [ 1 ] On April 29, 2011, I gave my reasons for a decision on an application by Arthur Kent, allowing him to amend his Statement of Claim and add new Defendants. I also granted him permission to report his former official agent and legal counsel for the election to the Law Society of Alberta and thereby relieved him of his obligation under the implied undertaking rule. [ 2 ] The parties have not been able to agree on costs. [ 3 ] Arthur Kent asks for costs as he was entirely successful. He asks for costs against what has become known as the “collective

media defendants” for the amendment application and the application to report Kristine Robidoux, Q.C. to the Law Society, and costs against Kristine Robidoux, Q.C. for the amendment application only. [ 4 ] With respect to the amendment application, Rule 3.66 of the Alberta Rules of Court applies: 3.66 The costs, if any, as a result of an amendment to a pleading are to be borne by the party filing the amendment unless (

a) the amendment is a response to an amended pleading, or (

b) the Court otherwise orders. [ 5 ] This rule deviates from the standard rule of, “ if you win your application you are entitled to costs”, according to Rule 10.29. The difference is highlighted by Slatter, J. by way of obiter in Koppe v. Garneau Crafts Ltd., 2005 ABQB 727 at paragraph 19 , where he identified the difference in cost consequences under the predecessor rule to Rule 3.66: Therefore, as a general rule where (for example) one party asserts a right to amend pleadings, and the other party denies that right, and the amending party must take the matter to court, costs should follow the event.

If the applicant succeeds on its motion to amend, it should get costs. Rule 141 says simply that the amending party must bear the costs of the amendment...Rule 141 does not say that the applicant must pay the costs of the fight over whether it has the right to amend, even if it wins that fight. That would be a most undesirable result, because it would mean that the respondents on motions like that could defend them with impunity, knowing that win or lose they would receive costs.

Absent some positive misconduct, the successful moving party should get costs of the motion to permit the amendment. [ 6 ] The amendment of the Statement of Claim by Arthur Kent was opposed by the collective media Defendants and Kristine Robidoux, Q.C. on the basis, not that the Plaintiff was not entitled to amend to his pleadings. Rather, it was opposed on the basis that the “implied undertaking rule” applied and the Plaintiff was not able to use the information as he intended, and in fact, the Plaintiff’s action was an abuse of process. [ 7 ] Rule 3.66 only applies to the amendment application.

Rule 10.29(1) applies to the application against the collective media Defendants with regard to the Law Society application. [ 8 ] Because of the background leading up to the application, Arthur Kent argues that this case warrants a deviation from the standard, party-party costs, and that full indemnity, solicitor-client costs are warranted. [ 9 ] The collective media Defendants argue that Arthur Kent should be liable for costs of this application based on Rule 3.66(

a) and cases 869120 Alberta Ltd. v. B & G Energy Ltd., 2011 ABQB 209 , a decision of Eidsvik, J. and Goska Nowak Professional Corp. v. Robinson , 2011 ABQB 385 , a decision of McMahon, J. [ 10 ] Further, the media Defendants argue that they should not be liable for costs of the Law Society application as it was unnecessary and could have been resolved in a manner short of bringing a special application. [ 11 ] Kristine Robidoux, Q.C. makes a similar argument to that of the media Defendants based on Rule 3.66 and the cases of Goska Nowak Professional Corp. v. Robinson and 869120 Alberta Ltd. v. B & G Energy Ltd.

She only responds to the application concerning amendment of the Statement of Claim as Arthur Kent is not pursuing her for costs relative to the Law Society application. [ 12 ] Rules 10.30, 10.31 and 10.33 are drafted in such a way as to provide a great deal of latitude to the Court. Under these rules, as under the previous rules, a successful party is entitled to costs on a party-party basis unless there are rare and exceptional circumstances.

[ 13 ] With respect to the application for relief from the implied undertaking rule in order to report Kristine Robidoux, Q.C. it is clear that Arthur Kent needed to obtain a court order. Given the history of this matter it could have simply been brought before the Case Management Justice. However, because of the position taken by the media Defendants and Kristine Robidoux, Q.C., it appears that Arthur Kent had no choice but to bring a Special Chambers application.

No real opposition to the application was made at the Special Chambers application notwithstanding the Defendants as a whole forced the matter to a Special. For whatever reason, a Consent Order was not agreed to and accommodation was not made to deal with the matter before the Case Management Justice. As a result of the application before me I granted an Order , and it appears to me that costs should be awarded in Arthur Kent’s favour.

While it appears that the matter could have been resolved short of a Special Chambers application, this isn’t one of those rare and exceptional circumstances where anything other than party-party costs should be awarded. Accordingly, I order that with respect to the Law Society application, the collective media Defendants shall pay Arthur Kent costs under the appropriate

Schedule C Column including the costs of this application and related disbursements and GST. [ 14 ] The application for amendment of the Statement of Claim is somewhat different because of Rule 3.66. I note that the cases argued before me seem to have conflicting views on how Rule 3.66 should be applied, and this, in essence, is the dispute between the parties on this cost application.

The application had been opposed vigorously by all the Defendants and the proposed Defendant on the basis of the implied undertaking rule, not so much on the merits of the amendment. [ 15 ] This amendment application was clearly not routine or typical. It arose as a result of a surprising disclosure by a Defendant in the discovery process. After having a new Claim struck as a result of that information, Arthur Kent brought the application to amend, and it was the Defendants that insisted on a Special Chambers application.

One Defendant also filed Affidavit material outside the time directed by the Case Management Justice. While it is true that the purpose of Rule 3.66 is to encourage litigants to get their pleadings right the first time, there is no way Arthur Kent could have gotten his pleadings right at the time of filing his Statement of Claim because he had no knowledge of Kristine Robidoux’s involvement until it was disclosed by Don Martin. [ 16 ] The voluntary disclosure by Don Martin clearly changed the game.

The vigorous opposition to the amendment on grounds unrelated to the normal procedure of allowing amendments and forcing the Special Chambers application takes this case out of the ordinary. This case is not similar to what Justice McMahon faced. It seems to me that given the facts of this case, the more appropriate way to view Rule 3.66 is how Justice Slatter viewed the predecessor rule in Kopp v.

Garneau Lofts Ltd . [ 17 ] Accordingly, on the application for amending the pleadings by Arthur Kent, I am satisfied that he is entitled to his party-party costs on the appropriate column, including the application of October 11, 2011, and all reasonable disbursements and GST. On the division of payment of the costs for the amendment application the collective media Defendants shall pay 50% of the costs and Kristine Robidoux, Q.C. should pay 50% of the costs. [ 18 ] Again, I do not view this as an exceptional and rare circumstance requiring solicitor client costs. Heard on the 11 th day of October, 2011.

Dated at the City of Lethbridge, Alberta this 3 rd day of November, 2011. D.K. Miller J.C.Q.B.A.

Appearances: Michael Bates Ruttan Bates for the Plaintiff Gabor Zinner Zinner Law Office for the Plaintiff G. Scott Watson Parlee McLaws LLP for the Defendants David Pick Scott Venturo LLP for Kristine Robidoux Q.C.