Adams v. Adams, 2011 ABQB 812

Court of Queen ’ s Bench of Alberta Citation: Adams v. Adams, 2011 ABQB 812 Date: 20111222 Docket: 4801 119740 Registry: Calgary Between: Fatin Hassan Adams Plaintiff - and - Gareth Mark Adams Defendant _______________________________________________________ Memorandum of Decision on Costs of the Honourable Madam Justice M.C. Erb _______________________________________________________ [ 1 ] This Memorandum addresses the costs consequences of the trial of this action ( 2011 ABQB 306 ). Costs were spoken to by all counsel on December 8, 2011.

Written briefs and authorities were earlier provided to this Court. [ 2 ] The Plaintiff seeks costs on the basis that she was largely successful at trial. She also seeks an award of double costs from the date of her formal offer, which was rejected. The formal offer is dated December 20, 2010. The trial commenced on March 14, 2011. [ 3 ] Mr. Ruff, Counsel for the Defendant, alleges “misconduct” by the Plaintiff as well as her Counsel, Mr. Aaron, and because of it, argued at the costs hearing that the Plaintiff should either be denied costs or have a costs award made against her in favour of the

Defendant. Alternatively, he disputed certain items in the Plaintiff’s bill of costs and disputed the double costs application arguing that the offer to settle required clarification and was not capable of acceptance. [ 4 ] This Court will first deal with quantification of costs generally, and then with the allegations made by Defendant’s counsel and the effect of those allegations on the costs award. [ 5 ] Costs are addressed under

Part 10 of the Alberta Rules of Court . Rule 10.29 provides that generally, and while subject to a court’s discretion, the successful party is entitled to a costs award against the unsuccessful party. While the Defendant suggested in his brief that a party must “succeed entirely” in order to be entitled to costs, this is inaccurate. Rather, a party that is largely or substantially successful can successfully claim costs: see for example, Yap v.

Supramaniam , 2006 ABQB 37 , 26 R.F.L. (6 th ) 412. [ 6 ] It is well-established that costs in actions for matrimonial property division or support should not be treated any differently than costs in other litigation: Yap v. Supramaniam , supra , para. 13 ; D.B.C. v. R.M.W. , 2005 ABQB 898 , 393 A.R. 160 at para. 6 ; see also Cador [Chichak] v.

Chichak , 1998 ABQB 881 ; aff’d 2000 ABCA 10 , where Wilson J. stated at paras. 9-10: In my respectful opinion, costs in matrimonial matters should not as a general rule be treated any differently than costs in any other matter, subject to the exercise of discretion, which cannot be codified or patterned into rules. I should start with the principal that ordinarily costs should follow the event, if there has been success for one party, and not for the other, or if success has not been clearly divided. Here the wife has succeeded.

While there is some comfort in the judgment for the husband, it cannot be said that he succeeded...The wife should have costs. [ 7 ] Our Court of Appeal has also held that there is no reason why the ordinary Rules respecting costs would not apply to matters of custody. In Metz v. Weisgerber , 2004 ABCA 151 , 348 A.R. 143, the Court held, at para. 18: The preceding paragraphs show that no legal authority compels this court to treat costs differently in custody cases than in other cases. Nor does the legislation say otherwise. Indeed, the legislation seems to say to treat them the same.

Typically, that would mean that costs go to the successful party. [ 8 ] MacPhail v. Karasek , 2006 ABCA 354 , 401 A.R. 100 at para. 8 and Brill v. Brill, 2010 ABCA 358 , 87 R.F.L. (6th) 254 at para. 8 , come to a similar conclusion. [ 9 ] In the trial of this action, there were four principal issues: The date of separation; division of matrimonial property; spousal support; parenting and access. The Plaintiff achieved a substantial measure of success on each issue.

Absent any factors which may lead this Court to exercise its discretion to the contrary, the Plaintiff would otherwise be entitled to an award of costs. [ 10 ] The Plaintiff seeks costs as submitted in her bill of costs plus disbursements. [ 11 ] Rule 10.33 provides a number of considerations that a court may take into account in making a costs award. These include:

a) the result of the action and the degree of success of each party;

b) the amount claimed and the amount recovered;

c) the importance of the issues;

d) the complexity of the action;

e) the apportionment of liability;

f) the conduct of a party that tended to shorten the action;

g) any other matter related to the question of reasonable and proper costs that the Court considers appropriate. [12] The factors applicable here include the result of the action and its complexity. The Defendant sought 50 per cent of thePlaintiff’s total assets which appeared to be in the $3 million range.

The action was factually complex although it was not novel in law.Proceedings were commenced in March of 2004, with previous litigation on child custody having taken place in New Brunswick wherethe parties resided at the time. [13] The Plaintiff was examined for discovery twice and the Defendant was examined once. There were numerous attendancesbefore various pre-trial or case management justices. The trial was 12 ½ days long, although it was set for a shorter period. Numerouswitnesses were called and the parties prepared informal written submissions with their authorities in addition to oral argument.

ThePlaintiff’s submission was in the range of a dozen pages. The Defendants submitted approximately 90 pages over the course of severaldays, requiring rebuttal. There have been additional attendances before this Court since trial. Supplementary written reasons were issued(2011 ABQB 576). [14] Given the complexity, the length of the proceedings and the value of the property involved, I find that the Plaintiff’s bill ofcosts should be assessed on Column 3 of

Schedule C. The Siebert Pask Report [15] The Defendant takes issue with the amount claimed for the expert reports of Siebert Pask. He submits that the reports werelargely unnecessary and unreasonable, given that parties could have supplied the information provided in the reports. The Defendant alsotakes issue with the objectivity of the reports, claiming that the author relied solely on information provided by the Plaintiff. [16] The Plaintiff asserts that the Siebert Pask reports were necessary in order to summarize asset and liability valuations at variousdates and further assisted the Plaintiff in calculating

section 7 expenses. [17] The invoices for the Siebert Pask reports total $21,386.63. Rule 10.31 provides that the unsuccessful party may have to paythe reasonable costs of experts’ reports. As our Court of Appeal commented in Seidel v. Kerr, 2004 ABCA 157, 348 A.R. 154, at para. 15“the primary factor in allowing expert witness costs is whether, at the time it was incurred, the expenditure was reasonable: Nova, AnAlberta Corp. v. Guelph Engineering (1988), (AB KB), 89 A.R. 363 (Q.B.).” The fees charged by an expert must alsobe reasonable: Anderson (Next Friend of) v.

Ball (1997), (AB KB), 214 A.R. 332 (Q.B.); Meehan v. Holt, 2011ABQB 110, 506 A.R. 208. [18] I agree with the Defendant that the Siebert Pask report of June 17, 2010 was largely unnecessary and could not be considereda reasonable expense at the time was incurred. The report is largely a

summary of the financial information provided by the Plaintiff,reduced to table form. It is based largely on estimates using information already known to the Plaintiff or upon market informationprovided through real estate appraisals. I note that the cost of these various real estate appraisals is also being claimed as disbursements.The report largely reorganised information which existed in separate forums. As Rowbotham J.A. noted in her reasons for the leaveapplication, 2010 ABCA 256, at para. 12: “Mr. Aaron, on behalf of Dr.

Adams, described the report as a list of assets rather than anopinion.” The list of assets was already known to the Plaintiff and it was not reasonable to incur such an expense simply to have themrestated in a different format. [19] However, certain aspects of the reports - namely calculations of the notional income tax and disposition costs that would incurif the investment portfolio held by the Plaintiff’s professional corporation was distributed - constitute a reasonable and proper expense.

Itwas necessary for the Plaintiff to seek out an expert in order to provide this information, and it was of assistance to the Court. [20] The authors of the reports have billed 85 hours, with Ms. Pask billing approximately $400 per hour and Ms. Askham billing

$250 per hour. Given the nature of much of the work preformed, I find this amount excessive. I find that approximately one third of theinformation contained in the reports was information that the Plaintiff required the services of an expert to assist within this action. Thisportion of the invoice constitutes a reasonable and proper expense. As such, one third of the Siebert Pask invoice represents adisbursement properly payable by the Defendant.

Formal Offer of Settlement [21] The Plaintiff submits that because the Defendant rejected a formal offer of judgment which she bettered at trial, she shouldhave double costs after December 20, 2010. The Defendant counters that because the offer was deficient, it was incapable of acceptance.He claims that the offer was not bona fide and amounts to a mere litigation tactic. Rules 4.24 - 4.29 govern formal offers of settlement. [22] The law is clear that proposals set forth in an offer must be unequivocal.

As this Court has stated “...consequences of the rulesas to costs contained in [then] Pt. 12 of the Rules of Court are punitive and therefore demand a very high degree of certainty andexactness”: Laframboise v. Billett (1991), (AB KB), 81 Alta. L.R. (2d) 285 (QB) at para. 3. I find that the offer madeby the Plaintiff satisfies these requirements. [23] The offer in question would have allowed the Defendant to keep all real and personal property he owned.

He would havereceived $300,000 with no obligation to pay retroactive child support and no obligation to pay ongoing child support for a three-yearperiod, nor any obligation to pay extraordinary costs. Pursuant to the offer, each party was to bear their own costs. Custody of thechildren was to reflect the recommendations in Dr. Fong’s report. [24] The offer constitutes a genuine compromise on behalf of the Plaintiff: see Kerr v. Kerr, 2001 ABCA 152, 293 A.R. 384. I findthat it was made with an intention to bring the litigation to a close.

The offer as drafted clearly outlined the terms of the proposedsettlement, notwithstanding minor typographical errors which are of no import. [25] It is clear that the cumulative effect of the judgment was more favourable to the Plaintiff than was her offer. On the factsbefore me, there are no circumstances that would lead this Court to exercise its discretion to decline to award double costs when thePlaintiff has bettered her offer. [26] The Defendant also submitted that “dealing with an offer would distract away from the Defendant and his counsel from doingimportant necessary trial preparation.

It would waste the Defendant’s and counsel’s time and the Defendant’s money.” With respect tothe Defendant, such an approach ignores the whole rationale behind settlement offers which is to reduce the costs of litigation andencourage the early resolution of disputes. [27] While an award of double costs is significant, “[i]n the absence of exceptional circumstances, a court should not hesitate toaward appropriate costs even if the result of the costs award would be to deprive a litigant of the financial benefit of the substantivelitigation”: Purich v. Purich, 1999 ABQB 212, 248 A.R. 145 at para. 24.

As such, the Plaintiff is awarded double costs (excludingdisbursements) for those steps taken after the offer was served. [28] I have read the Plaintiff’s G.S.T. recovery affidavit and exercise my discretion to award G.S.T. on the

Schedule C fees. Allegations of misconduct

a) costs against the Plaintiff Dr. Adams [29] A court may exercised its discretion to reduce or eliminate costs awarded to a successful party where it makes a finding ofmisconduct: Rule 10.33(2)(g); Toma v. Toma, [1996] A.J. No. 882 (QB) para. 25; 642718 Alberta Ltd. v. Alberta (Minister of Public

Works), 2005 ABQB 810, 390 A.R. 193; Jackson v. Trimac Industries Ltd. (1993), (AB KB), 138 A.R. 161 (QB). [30] Mr. Ruff has alleged misconduct by both the Plaintiff and her solicitor, Mr. Aaron. Specifically, Mr. Ruff has claimed that thePlaintiff committed the following acts amounting to misconduct:

i) opposing the Defendant’s application for an advance of $25,000 to finance the litigation; ii) failure to comply with certain undertakings given during discovery about value of her RRSPs and out-of- province health carerecords; iii) cutting back the amount of time the Defendant was spending with the children in 2005; iv) providing false information to Dr. Fong for the bilateral parenting report; and

v) lying in her testimony to this Court. [31] I find that the allegations of dishonesty and misconduct directed at the Plaintiff are grounded in opinion as opposed to fact andhave not been established on the evidence. I note that the Plaintiff was entitled to - and was successful in - opposing the Defendant’sapplication for an advance.

This distinguishes the case here from Trimac Industries, supra, where the Court found that an action wasforced by an injured party to gain what was rightfully his. [32] On the undertakings, the Defendant’s allegation about a discrepancy in value of the RRSPs was addressed at trial and in theSiebert Pask report. The undertaking relating to health care records of payment outside Alberta was already addressed by the casemanagement justice and no Order was made.

As for allegations of misconduct regarding parenting time, I cannot find any action of thePlaintiff that could be classified as misconduct deserving of a costs sanction. [33] Lastly, I do not agree with the Defendant that the Plaintiff was less than truthful with either Dr. Fong or with this Court. Ifound her to be very forthright and credible in giving her evidence. There is nothing in the submissions put forward by the Defendant thatwould amount to special circumstances leading this Court to exercise its discretion to deny the award of costs otherwise payable to thePlaintiff.

b) costs against Mr. Aaron [34] The allegations directed at Mr. Aaron were very serious and necessitated the Alberta Lawyers Insurance Association to retainAnne L. Kirker as counsel for Mr. Aaron. [35] Mr. Ruff argued that Mr. Aaron committed the following alleged acts of misconduct and dishonesty which he argued shouldattract costs consequences, specifically that he:

i) misconducted himself at a hearing during case management before Justice McDonald; ii) received privileged documents from the Defendant’s former counsel, Ms. Shennette, after she was no longer had conduct of thefile; and iii) improperly objected to a question put to Ms. Lourdes-Beltram during cross examination and in doing so coached the witness ona critical point of evidence. [36] Each allegation will be addressed separately. [37] Mr. Ruff alleges that Mr. Aaron misconducted himself by misrepresenting to the case management justice on July 20th thatMr. Ruff had taken over conduct of the file when the latter was only in the process of transitioning the file from Ms. Shennette. In

addition, Mr. Ruff alleges that during this meeting Mr. Aaron deceived the Court by failing to advise that the Siebert Pask report was served late in relation to the previously set September 20, 2010, trial date. [ 38 ] I have reviewed the correspondence between the parties with respect to this allegation, as well as the transcript of the July 20 th case management meeting. I do not find that Mr. Aaron made a misrepresentation to the Court in indicating that Mr. Ruff had assumed conduct of the file. The discussion at the time focussed on the fact that the file was in transition. Ms.

Shennette was present during the meeting requesting that she be removed as the solicitor of record. The transcripts indicate that it was obvious to all parties and to the Court that Mr. Ruff was not yet officially the Defendant’s counsel. I find nothing misleading in this exchange. [ 39 ] Turning to the Siebert Pask report, while the time of its service was not specifically addressed, there is nothing in the transcript to suggest that Mr. Aaron was being elusive about it. He told the Court that the April trial date did not go ahead.

While the fact that the report was filed late given a September trial date was not raised, there was no request for further explanation. In addition, Ms. Shennette had already accepted service of the report without objection. Given the timing of the transition of the file, the case management justice addressed late filing of any subsequent expert reports. There is nothing to suggest that the outcome would have been different had he been specifically advised of the timing of the Siebert Pask report. [ 40 ] On the issue claiming Mr. Aaron improperly received privileged documents from former counsel, Ms.

Shennette after she had been removed as counsel of record., the file discloses that Mr. Aaron had asked Ms. Shennette to provide him with replacement correspondence that he had misplaced from his file. Ms. Shennette faxed to his office certain documentation which did include some privileged correspondence between Mr. Adams and Ms. Shennette, as his counsel. I accept that Mr. Aaron at no time requested privileged correspondence. It is clear that the correspondence was sent in error. [ 41 ] Mr. Ruff followed up with Mr. Aaron about why the correspondence was sent and requested copies of everything Ms.

Shennette had provided to Mr. Aaron. Mr. Aaron explained that he had been attempting to reconstruct his file and that copies of all correspondence that he had received would be on the file that Mr. Ruff had received from Ms. Shennette. This Court has reviewed the correspondence between Messrs. Aaron and Ruff on this point as well as the transcripts of the February 11, 2001 proceedings before Justice Strekaf. Following submissions, Strekaf J. instructed Mr. Aaron to provide Mr. Ruff with copies of the documents he had received from Ms.

Shennette and instructed him to provide a letter confirming that he would not be referring to any material contained in the correspondence unless he gave Mr. Ruff advanced notice. Mr. Aaron complied with those instructions as disclosed in his letter of March 8, 2011 to this Court, which also explains the return of documents that had been inadvertently faxed. Strekaf J. refused to make an order directing that Mr. Aaron be cross-examined on the issue. Of note, she stated (at p. 17 lines 2-7): ...I accept Mr. Aaron’s explanation as an officer of the court as to what happened.

That he requested documents with respect to a – a couple of month period and that - and I also accept his explanation that at the time, while in hindsight he - he had - wasn’t putting his mind to the fact that Ms. Shennette was not acting on this particular matter. So I accept that particular explanation. [ 42 ] While subsequent correspondence clearly shows that Mr. Ruff did not accept Mr. Aaron’s explanation as to what occurred, that is of no import. Justice Strekaf found no impropriety and this Court has no quarrel with her finding. While I find that Mr.

Aaron erred in judgement in requesting documentation from Ms. Shennette when he was aware that she was no longer the solicitor of record, in the circumstances this does not amount to serious ethical misconduct nor is it the type of conduct that would lead this Court to exercise its discretion in varying the award of costs. [ 43 ] Mr. Ruff’s had also alleged that Mr. Aaron improperly objected to a question during the cross-examination of Maria Lourdes- Beltram. He specifically claims that Mr.

Aaron suggested a response to the witness in objecting to a question put to her regarding the coordination of the parties’ schedules. As the Justice presiding over the trial, had I believed that Ms. Lourdes-Beltram’s evidence had become tainted or should be discounted altogether on the basis of the objection, I would have made that clear. This situation is not sufficient to warrant a costs penalty. [ 44 ] In

summary, the Defendant has failed to substantiate any of his claims that Mr. Aaron conducted himself unethically or is otherwise guilty of conduct deserving of an award of costs.

c) costs against Mr. Ruff

[ 45 ] Ms. Kirker argued at the costs hearing that while Mr. Aaron’s actions do not constitute misconduct attracting a costs penalty, the unsubstantiated allegations of misconduct and dishonesty levelled against Mr. Aaron by Mr. Ruff are sufficiently serious to compel a costs award to cover her representation of Mr. Aaron. [ 46 ] The Court of Appeal of Alberta recently noted that courts have often visited heavy costs on parties making serious allegations of improprieties which are not proven: Recovery Production Equipment Ltd. v. McGivney Machine Co ., 1998 ABCA 239 , 223 A.R. 24 at para. 103 . [ 47 ] Perhaps Mr.

Ruff’s approach throughout his conduct of the Defendant’s file is best summarized by Ms. Kirker during argument at this costs hearing: During the course of this litigation, from the time Mr. Ruff first became involved, persons who have opposed or disagreed with the Defendant’s position have been subjected to groundless accusations of serious misconduct, intentional wrongdoing. These accusations have been levelled at Defendant’s former counsel, Ms. Shennette, the Plaintiff’s current counsel, Mr.

Aaron, the Plaintiff herself, witnesses who have testified on behalf of the Plaintiff at trial, the Court, and now me, appearing on behalf of Mr. Aaron. It seems that if you disagree with the Defendant, Mr. Ruff submits that you are guilty of misconduct. [ 48 ] I agree with Ms. Kirker that the Court cannot countenance this approach to ligation by counsel. It is inappropriate and unprofessional. I agree that the unsubstantiated allegations of serious misconduct and dishonesty levelled against Mr. Aaron are in themselves serious enough to warrant the payment of the costs of Ms. Kirker’s representation of Mr.

Aaron. [ 49 ] During oral argument, Ms. Kirker submitted that it was within this Court’s discretion as to whether a costs award should be on either a solicitor-client basis or whether the costs should be payable by the solicitor personally. Mr. Ruff was present in the courtroom and must be taken to have heard her submission. He had an opportunity to respond but did not do so. [ 50 ] It is well-established that costs repose within the discretion of the court and that such discretion must be exercised judiciously and appropriately given the circumstances of the case: MacCabe v.

Westlock Roman Catholic Separate School District No. 110 , 1999 ABQB 666 , 243 A.R. 280 at para. 61 , 2002 ABCA 307, 320 A.R. 194, at para. 12. This discretion allows the court on its own motion to make an award of costs against a solicitor personally: 155569 Canada Ltd. v. 248542 Alberta Ltd. , [1997] A.J. No. 296 (QB) at para. 20 . See also Rule 10.50. [ 51 ] It is notable to this Court that although Mr. Adams has been represented in the past by various counsel, the accusatorial approach that was pursued in this litigation more recently appears to have begun contemporaneously with Mr.

Ruff taking conduct of his file. [ 52 ] Mr. Ruff clearly chose to approach litigation using intimidation and bullying tactics as his primary strategy. Anyone, be it counsel, party, witness or even the Court, who disagreed with Mr. Ruff found themselves on the receiving end of a charge of “serious misconduct” or was either named or threatened to be named as a party in separate litigation. It is clear to this Court that these tactics were employed in an attempt to gain some sort of litigation advantage. [ 53 ] The type of conduct which might attract such a costs award was the subject of comment in Robertson v.

Edmonton (City) Police Service , 2005 ABQB 499 , 385 A.R. 325, (per Slatter J.) at para. 21 : It is apparent from the case law that there must be some finding of positive misconduct by counsel before costs will be awarded against him or her personally. It is not enough that the action was unsuccessful. It is not enough that the client advanced unmeritorious claims, or instructed counsel to pursue the matter in an undesirable way. Nor is it sufficient that counsel did not act in an exemplary fashion. A mere error of judgment, or even negligence, is not enough.

Obviously, legitimate tactical decisions by counsel on the conduct of the litigation do not justify personal cost awards. The conduct of the barrister must demonstrate or approach bad faith, or deliberate misconduct, or patently unjustified actions, although a formal finding of contempt is not needed : Shum v. Mitchell , supra, at para. 15; Brown v. Silvera , supra, at para. 32. [emphasis added]

[54] As noted already in these reasons, Mr. Ruff’s conduct went well beyond his dealings with Mr. Aaron and included allegationslevelled at Dr. Adams, other witnesses, other counsel and this Court. While Loates v. Loates, 2000 ABQB 253, 264 A.R. 287, dealt inpart with unjustifiable delay, the Court’s commentary on a solicitor’s questionable conduct and attempts to engage both the court andopposing counsel in personal debate is applicable here.

Justice Lee had this to say at paras. 23 and 27: What these letters show is a discourteous and disrespectful attitude towards the Court, and show an inability to deal properly with thesometimes inevitable disagreements between counsel and the Bench respecting the law. When counsel believe the court is mistaken, theresponse is either to appeal, or in the case of the settling of Orders, to utilize the procedures outlined in the Rules of Court to inquirewhether the Court has been mistaken.

Inflammatory criticisms of the fairness and integrity of the Court in letters to opposing counsel,carbon copied to the client, and certainly the tone of the comments in the letter directly to the Court, edge very close to a contempt of thecourt. [...] However, the Court must be extremely cautious in exercising its powers of contempt, particularly in cases of counsel criticizing theCourt. Discourtesy and unprofessionalism on the part of counsel does not necessarily reach the point of contempt, unless it can be seen asan interference with the administration of justice.

It is my view that such issues of discourtesy and unprofessional conduct are betteraddressed by the Law Society. [55] Like Justice Lee, I am far less concerned about the effect of Mr. Ruff’s conduct on this Court than its effect on the opposingside. In Markdale Ltd. v. Ducharme, 1998 ABQB 758, 238 A.R. 98 Justice Beilby granted costs personally against counsel on a numberof grounds, including “generally acting in bad faith” as well as “unfounded accusations of misconduct” against opposing counsel: paras.67 and 72.

Of particular note here are her closing comments at para. 75: [the solicitor’s] conduct was improper, not negligent. His unsubstantiated allegations of impropriety against [opposing counsel] duringthe case management process, and his excessive correspondence on trivial matters, in the context of all that had gone on before,imbedded in his history of conduct as a whole caused Lee, J. to become concerned that the case management process was beingcorrupted. Contemporary Courts cannot operate and modern litigation proceed without access to efficient and effective case managementwhere necessary.

Actions which debase or waste that resource must be addressed and deterred. [56] While awarding costs against counsel personally may be considered an extraordinary remedy and is not one which should bemade casually, I find it is warranted on the facts before this court. Mr.

Ruff’s conduct went beyond excessive zeal for the case: it wasdeliberate, in bad faith, unprofessional and unjustified. [57] Although numerous individuals associated with this case found themselves on the receiving end of allegations of unethicalconduct or impropriety, it is Mr Ruff’s complete failure to substantiate the allegations of “extremely egregious legal and ethicalmisconduct” made against Mr. Aaron which attracts a costs award here.

It is this type of irresponsible conduct which weakens theperception of the justice system as a whole. [58] Allegations of unethical conduct, misrepresentations before the court and sharp practice should not be made lightly, given theeffect such statements may have on a lawyer’s reputation, and, in direct connection, his livelihood. As was noted by the majority in Hillv. Church of Scientology of Toronto, (SCC), [1995] 2 S.C.R. 1130 at para. 118: In the present case, consideration must be given to the particular significance reputation has for a lawyer.

The reputation of a lawyer is ofparamount importance to clients, to other members of the profession and to the judiciary. A lawyer's practice is founded and maintainedupon the basis of a good reputation for professional integrity and trustworthiness. It is the cornerstone of a lawyer's professional life.Even if endowed with outstanding talent and indefatigable diligence, a lawyer cannot survive without a good reputation. [59] The costs of having Ms. Kirker attend to address the charges of misconduct should never have been incurred, given thespurious allegations of unethical behaviour.

As confirmed by (then) McLachlin J. in Young v. Young, (SCC), [1993] 4S.C.R. 3 the basic principle on which a costs award is granted remains compensatory and costs against a solicitor personally remains anexceptional remedy: at para. 254. See also Jackson v. Trimac Industries Ltd., supra.

Order as to Costs [ 60 ] In

summary, the Plaintiff will have her bill of costs on Column 3 of

Schedule C, plus GST. She is also entitled to her disbursements as claimed, excepting the Siebert Pask report to which she is entitled to one third of that invoice. Since the Plaintiff bettered her offer following trial, she is entitled to double costs incurred after December 20, 2010. [ 61 ] Previous costs orders payable to the successful party in the cause, specifically the order of Rowbotham JA., are confirmed payable forthwith by the Defendant. [ 62 ] Given Mr. Ruff’s unsubstantiated allegations of serious misconduct and dishonesty, I order that Mr. Ruff personally pay the costs of Ms.

Kirker’s representation of Mr. Aaron throughout these proceedings, forthwith. All costs payable by the Defendant, Mr. Adams may be set off against any financial award he received arising from the trial. Heard on the 08 th day of December, 2011. Dated at the City of Calgary, Alberta this 22nd day of December, 2011. M.C. Erb J.C.Q.B.A. Appearances: William T. Aaron, Q.C. and Max Blitt Spier Harben for the Plaintiff Anne L. Kirker Macleod Dixon LLP for Mr. Aaron A. Charles Ruff McLean Ruff LLP

for the Defendant