LDW v. KDM, 2012 ABQB 128

Court of Queen ’ s Bench of Alberta Citation: LDW v. KDM, 2012 ABQB 128 Date: 20120228 Docket: 4801 122280 Registry: Calgary Between: L. D. W. Plaintiff - and - K. D. M. Defendant Restriction on Publication: By Court Order, there is a ban on publishing information that may identify the children or guardians in this matter. See the Family Law Act, s. 100. _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice P. R.

Jeffrey _______________________________________________________ [ 1 ] L.D.W. (“ W ”) applies for leave to appeal this Court’s decision that she pay to K.D.M. (“ M ”) a portion of his trial costs: 2011 ABQB 800 (“ Costs Decision ”). She applies pursuant to Rule 505(3), which remains in effect pursuant to Rule 14.1(1) , Alberta Rules of Court , Alta.Reg. 124/2010. [ 2 ] Rule 505(3) states: No Judgment given or Order made ... as to costs only shall be subject to any appeal, except by leave of the court giving the Judgment or making the Order.

[ 3 ] W first requested leave of this Court as part of an omnibus application. The Leave to Appeal portion of that application did not contain sufficient information to enable the Court to consider her request. By letter of February 2, 2012, W was accorded a further opportunity to demonstrate to the Court the grounds for her leave application.

In response, W provided further submissions in support of this leave to appeal application, including a copy of her various proposed grounds of appeal for the Court of Appeal. [ 4 ] W says therein, among other things, that she had earlier commenced an appeal of the trial decision but then abandoned it by reason of lack of funds. She had estimated that the cost of trial transcripts would exceed her available resources. [ 5 ] For the reasons that follow I dismiss the application for leave. In brief, W has failed to satisfy the high threshold necessary to warrant an appeal of the Costs Decision.

She has not identified a good, arguable case on an issue having enough merit to warrant scrutiny by the Court of Appeal that is also an issue of importance generally, that is, beyond its importance to these two parties. Applicable Law [ 6 ] The law governing the granting of leave to appeal a costs decision was recently summarized by Justice Yamauchi of this Court in Lameman v. Alberta , 2011 ABQB 724 , as follows: [9] A party seeking leave to appeal a costs order must meet a high threshold . The case law is clear that leave to appeal costs orders should be granted sparingly : Gutierrez v.

Jeske , 2005 ABQB 971 , 396 A.R. 1 at para. 4 . [10] The purpose of Old Rules r. 505(3) is to bring finality to costs orders and to conserve court resources by screening out appeals that are hopeless: Huang v. Telus Corp. Pension Plan (Trustee of) , 2005 ABQB 272 at para. 10 . Although it might seem unusual for an applicant to seek leave from the judge who made the initial costs order, the Old Rules allow for this procedure and the Alberta Court of Appeal has endorsed the practice: Roman Catholic Bishop of the Diocese of Calgary v.

Canada (AG ) , 2010 ABCA 202 , 487 A.R. 348 at para. 10 , leave denied 2010 CarswellAlta 2468 (S.C.C.) [“ Roman Catholic CA ”] . The reasoning behind this procedure is that the judge who granted the original costs order has an understanding of the case and its nuances and is, therefore, in the best position to assess the prospects of a successful appeal: Prefontaine v. Bell , 2007 ABCA 244 at para. 11 . ... [13] A leave to appeal application does not give the parties an opportunity to re-argue the issue of costs: Roman Catholic Bishop of the Diocese of Calgary v.

Canada (AG) , 2009 ABQB 231 at para. 5 , aff'd 2010 ABCA 202 [“ Roman Catholic QB ”]. However, because of the four part test provided by the court in Huang at para. 4 , and approved by the Alberta Court of Appeal in Roman Catholic CA at para. 14, the court hearing a leave to appeal application must provide the applicant sufficient latitude to address the factors included in the test. That four part test is as follows: (

i) the applicant must identify a good, arguable case having enough merit to warrant scrutiny by the court; (ii) the issues must be important, both to the parties and in general; (iii) the appeal must have practical utility; and (iv) the court should consider the effect of delay in proceedings caused by the appeal.

... [15] In considering whether this Court should grant the Applicants leave to appeal the Costs Decision, this Court must consider thestandard of review that the Alberta Court of Appeal will apply when it considers an appeal from the Costs Decision. The Alberta Courtof Appeal will not interfere with the Costs Decision unless this Court committed a clear, palpable and overriding error: CondominiumCorp. No. 9813678 v. Statesman Corp., 2011 ABQB 489 at para. 14; Westersund v.

Westersund, 1993 ABCA 219, 157 A.R. 276 at para.11. [Underlining added] [7] The purpose of the leave requirement is “to put an end to litigation”: Yakimyshyn v. Yakimyshyn (1994), 1994 ABCA 269, 157 A.R. 157 at para. 12 (C.A.); Colborne Capital Corp. v. 542775 Alberta Ltd. (1996), 1996 ABCA 94 , 184 A.R. 63at para. 10 (C.A.). [8] Thus leave is “sparingly granted and only in very obvious cases”: Forsyth v. Sehn, 2006 ABQB 752 at para. 10. [9] The applicant can succeed by showing that the trial judge’s discretion was not exercised judicially. In Alberta (Parentage &Maintenance Act, Director) v.

C.(B.) (1993), (AB KB), 143 A.R. 181 at para. 10 (Q.B.), Deyell, J. repeats withapproval the following comments of Esson J.A. in Currie v. Thomas (1985), (BC CA), 3 C.P.C. (2d) 42 (B.C. C.A.): The discretion [in deciding costs] must, of course, be exercised judicially.

That, at least, means that it is not an arbitrary power to becapriciously exercised. [Citations omitted] Analysis [10] M argues that W has not “discharged her burden of establishing that there is some legitimate reason to grant leave to appealthe costs order made against her.” He says her proposed grounds of appeal are “hopeless” and that they serve only to “prolong andexasperate conflict between the parties”. He observes that she has offered “nothing in law, equity or otherwise” warranting the attentionof the Court of Appeal.

He maintains that W’s issues have “no palpable importance.” He urges the Court to bring some finality to theseproceedings. [11] The four-part test to be satisfied by W in order to be granted leave to appeal the Costs Decision, again, is: (

i) the applicant must identify a good, arguable case having enough merit to warrant scrutiny by the court; (ii) the issues must be important, both to the parties and in general; (iii) the appeal must have practical utility; and (iv) the court should consider the effect of delay in proceedings caused by the appeal. [12] The “and” in point (iii) above is connective, not disjunctive. This means that an applicant must satisfy each of (i), (ii) and (iii),not just any of (i), (ii) or (iii). The court must also consider branch (iv) of the test.

[ 13 ] W’s application satisfies part (iii) and, upon consideration of branch (iv), in this case any delay pending an appeal of the Costs Decision is not of such concern as to stand in the way of W’s proposed appeal. [ 14 ] Regarding part (iii), the amount at stake in the proposed appeal is of practical utility; the quantum of costs is very material to both parties relative to their current financial positions. [ 15 ] Regarding part (iv), M urges the Court to dismiss the leave application citing the need for closure between the parties on all issues, particularly in view of how long it took for the matter to reach trial and of M’s very immediate need for the costs awarded to him to reduce (not eliminate) his indebtedness.

Nevertheless allowing W’s appeal to proceed would not result in any “unreasonable delay.” The effect of any delay encountered by the parties before the matter of costs is determined with finality involves just the time value of money. This is compensable and, in any event, has already been mitigated by my wording of the Costs Order. If M ultimately succeeds on any appeal of the Costs Decision that is allowed to proceed, paragraph 2 of the Costs Order mitigates the adverse impact to M of the loss of the time value of the money over the period of any delay. [ 16 ] Parts (

i) and (ii) of the test require a consideration of the specific issues that W wishes to argue on appeal. W’s intended grounds of appeal are: 1. The Judge used an unreasonable performance standard for an unrepresented litigant (the Appellant). 2. The Judge relied upon incorrect information and calculations regarding the Appellant’s ability to retain legal counsel for Trial. 3. The Judge incorrectly calculated the amount of Trial time devoted to custody/parenting issues, and on issues that the Appellant had no control over. 4.

The Judge did not provide justification for his claims that additional court time was due to the Appellant, and ignores factors that support it was not. 5. The Judge exhibited bias against the Appellant. 6. The Judge made mistakes in accurately recording Trial evidence, resulting in unfair costs consequences for the Appellant. 7. The Judge applies inappropriate case law to our situation. 8. The Judge does not provide justification for some conclusions upon which costs are based. 9. The costs award does not take relevant factors into consideration. 10. The Judge treated some matters inconsistently. 11.

The Judge ignored procedural directions given in the Divorce Judgment and at Trial, regarding costs issues. 12. Custody and Parenting Arrangements is not an appropriate costs issue.

[ 17 ] Having reviewed in detail each of these intended grounds of appeal and the explanatory descriptions of each, W has not satisfied her burden of demonstrating that any of these issues are of importance generally. They certainly are important to W and, because they might affect the decision as to costs, they are also of importance to M. However, the requirement is to demonstrate how these issues are important more generally, for example, as guidance to future litigants similarly positioned, or in resolving novel issues.

The issues advanced by W fail to meet this standard. [ 18 ] In fact, W offers nothing to explain how any of her 12 intended appeal issues are of importance generally. Perhaps she regards the general importance to be either obvious or implicit. If so, I do not agree. I might be able to conceive of possible arguments that might be intended by W or that could have been raised in support of maybe one or two issues as areas of general importance, but the onus is upon W to demonstrate this.

It is not for me to read in to her issues what might have been meant, or what might have been added but was not, or what else might have been argued but was not. W has failed to satisfy the onus upon her in respect of the second branch of the test. For the one or two issues that I might be able to conceive of a possible importance beyond these two parties, they do not satisfy the first branch of the test. [ 19 ] That is dispositive of the application.

Nevertheless, in view of the first branch of the test – the threshold level of merit necessary for leave to be granted – a few comments are warranted with respect to W’s arguments and her intended grounds of appeal of the Costs Decision. [ 20 ] In support of Issue 1, W incorrectly states that the Costs Decision “provided no justification to support [the Trial Judge’s] assertion that I was unprepared for trial.” Paragraph 39 of the Costs Decision states: Second, [costs] should be adjusted upward as a consequence of the manner in which the trial was approached by LDW.

Specifically, she was not prepared which caused many delays including the Court spending most of the first two days with all parties present looking after matters that should have been completed prior to commencement of trial and explaining the process. There were adjournments for LDW to get advice from time to time, that the Court procured for her on a pro bono basis from experienced and gracious members of the bar. There was extensive repetition in the evidence presented and in the cross-examination undertaken.

No notice was given to KDM prior to trial of various documents LDW wished to adduce at trial nor was there disclosure prior to trial of tape recorded conversations that LDW wished to adduce at trial.

The trial itself was protracted as a consequence of LDW’s forays into irrelevant matters, repeatedly presenting argument in the context of evidence and cross examination questions, and as a consequence of her trying to cope with the stress and demands of the process after preparing deep into each night of trial. [ 21 ] Issue 4 asserts a similar ground of appeal, that the Costs Decision did not justify claims that “additional court time was due to W”.

In addition to paragraph 39 of the Costs Decision (above), which does explain ways in which additional court time was due to W, paragraph 41 states: In any event of the cause for LDW being without counsel at trial, it is not fair for that choice to visit upon KDM extraordinary incremental cost from her lack of preparation, repetition, failure to disclose, and time taken to receive explanations on trial processes and options. LDW compensated for her uncertainty as to the implications of various trial options by extensive repetition and over inclusion.

The Court is placed in an awkward position in such circumstances, and will often (as in this case) permit the self-represented litigant to go on at length rather than curtail her opportunity to be heard, to avoid her saying too little and leaving out what she may not realize is relevant and material. All of this, however, resulted in a trial process much longer than necessary. [ 22 ] Issue 7 by its description might have warranted granting leave since, arguably, a discretion exercised contrary to law is not a discretion exercised judicially.

However W offers nothing in support of her claim and fails to provide any examples or explanation. She offers only a bare assertion. Without more this allegation must fail. [ 23 ] Moreover, only two court decisions are cited in the Costs Decision, both of which involved cost awards following litigation involving a self-represented party and one of which expressly addressed family litigation where the financial consequences could adversely impact the children the litigants purported to protect. That was one of the trial findings in this case.

W may disagree with that finding from trial, but that having been the finding of the Court W cannot sustain an argument that a case commenting on this very dynamic is somehow inappropriate.

[ 24 ] In support of Issue 1, W’s explanatory comments imply that M’s counsel had some obligation to inform her of “her fee structure or mounting costs”. M’s counsel bore no such obligation and any failure to do so does not entitle W to proceed with an appeal of the Costs Decision.

In any event, during the trial M’s counsel did, in fact, repeat in front of me the cautions that counsel said W had been informed of before trial: that costs would be claimed against W if W lost; that M’s costs were escalating as the trial extended longer and longer, and that double costs would be claimed if the trial decision was more favourable to M than M’s pre-trial offer. [ 25 ] As W may recall from the Costs Decision, M’s application for double costs was denied.

Part of the rationale for denying that request by M related to the probability that a party not represented by counsel, as was W at the time, would not appreciate the significance of rejecting a formal offer of settlement (that is, the risk of facing double costs for all steps taken after the offer was made). [ 26 ] W refers to a comment contained in the Costs Decision as evidence of the Court’s bias against her.

The subject comment was: I take some comfort in knowing [W] believes strongly in people experiencing the consequences of their actions, based on my hearing at trial of her urging the Glencoe and the children’s schools to fully impose consequences upon her children for their conduct. [ 27 ] Taken in context, this comment follows the Court’s expression of an inclination to actually favour W in order to save her the burden of an adverse costs award. However, principles of fairness and the established law prevented that outcome.

In this regard see specifically paragraph 45, and more generally paragraphs 39-45 in the Costs Decision. [ 28 ] The impugned comment was not presented as a reason for the decision but, after recognizing what must be the decision, as a reassurance that the decision was likely to come as no surprise – perhaps even be readily accepted – because the values underpinning the decision, of actions having consequences, were well understood by W.

The inference of bias drawn from the comment is misplaced and unfortunate. [ 29 ] Obviously the Court agrees with such values given the law is largely premised upon the same principle that parties should bear the legal and equitable consequences of their voluntary (and in some cases involuntary) acts. There is no prospect of W succeeding before the Court of Appeal on an argument that an informed person, viewing the matter realistically and practically – and having thought the matter through – would conclude the Court was biased or displayed bias: Roman Catholic Bishop of the Diocese of Calgary v.

Canada (AG) , 2010 ABCA 202 , 487 A.R. 348, leave to appeal denied [2010] S.C.C.A. No. 318, 2010 CarswellAlta 2468 (S.C.C.) . No clear, arguable case has been demonstrated on this issue. [ 30 ] In support of Issue 1 and other of her intended appeal issues W refers to having stretched herself “mentally and physically to the extent of my ability” during trial and that I, as judge, “had the discretion to accommodate these extenuating circumstances” but did not. If nothing else this characterization of W’s objections admits to being a disagreement on the exercise of my discretion.

However, the exercise of my discretion is consistent with prior case law as cited in the Costs Decision. Any argument that my discretion was not exercised judicially has no prospect of success. [ 31 ] Indeed, based upon the explanatory description for each, almost all of W’s 12 issues seek, to varying degrees, to appeal the judicial exercise of discretion in the Costs Decision. W offers numerous grounds of disagreement with the exercise of discretion. But disagreement alone is insufficient to warrant the attention of the Alberta Court of Appeal.

To successfully demonstrate W’s intended grounds of appeal have sufficient merit to grant leave to appeal, W must show the Trial Judge’s discretion was not exercised judicially. She has not. [ 32 ] Almost all of W’s 12 issues to some degree also express disagreement with conclusions drawn from the trial. At page 10 of her submissions W asks for leave to appeal the Costs Decision so that the Court can “hear more evidence on my ‘imputed income’ and my ‘choice’ to be self-represented”. These were issues in the trial itself.

Elsewhere W alleges the Court failed to consider certain trial evidence and certain circumstances of the parties through their multi-year legal battle. [ 33 ] In doing so, apart from misstating and mischaracterizing many of the trial events and findings, it is clear her disagreement is with the trial outcomes. W acknowledges that the basis of her challenge to the Costs Decision is the trial evidence, by stating (at p. 10):

Because the basis of my Costs Appeal is the lack of evidentiary soundness in the trial evidence on which the Costs Decision is based ... This statement shows that W is expecting different findings of fact and different outcomes in the Costs Decision than were rendered in the trial decision, but on the same evidence.

The Court of Appeal will not permit W to collaterally attack outcomes at trial under the guise of an appeal of the Costs Decision following trial. [ 34 ] Even if certain of W’s arguments could be sustained as dealing with findings only found in the Costs Decision (not in the trial decision), or that her arguments do not collaterally attack anything in the trial decision (and I could identify no such extricable arguments), fundamentally W is simply disagreeing with the judicial process of weighing and drawing conclusions from evidence.

As such, her arguments fail to meet the threshold of a clear, arguable case warranting the attention of the Court of Appeal. [ 35 ] In her submissions in support of her leave application W also says, at p. 8: Once the Court becomes aware that the basis of a decision (The Trial Judgment) is flawed (based on my October 6, 2011 and October 9, 2011 letters to the Court), the Court is not justified in disregarding that knowledge and proceeding to subsequent Judgments (the Costs Decision), based on questionable evidence in the first supporting Judgment. [ 36 ] W is saying that since she has alleged in correspondence to this Court that the trial decision was flawed, this Court cannot proceed to make a costs decision in respect of that trial.

This is incorrect. A costs appeal is not the forum for challenging the trial decision. The costs assessment is based upon what transpired at trial and, often, the steps between commencement of the action(

s) and the start of trial. If a trial decision is under appeal the issue of costs can be stayed, or a decision on costs made but its effect stayed. Here the appeal of the trial decision was abandoned. There is no basis for delaying the matter of costs on the grounds alleged when no appeal has been taken of the trial decision. [ 37 ] W makes similar arguments with respect to this Court proceeding to sign the Costs Order when she was advancing an appeal of the underlying Costs Decision.

She states, at p. 13-14: My entire January 30, 2012 submission was based upon my objections to the content of the [Costs] Decision and the Draft Order reflecting it. I am astounded that the Court is assuming instead that I have no objections or take no position. I strongly object to the Draft Order which has by now been signed, despite my objections. [ 38 ] When presented with a draft order following a judicial decision the issue before the Court is whether or not that draft accurately reflects the decision rendered.

Even though a party may disagree with the decision embodied in the draft order, the only relevant comments about the draft are whether or not the proposed form of order accurately reflects the decision that was made. W was silent on this point in her submissions. Any disagreement with the underlying decision is not relevant; instead, the substantive decision can be challenged through a separate process by seeking leave to appeal, as W has undertaken here.

Since W proceeded to challenge the underlying Costs Decision by making this leave to appeal application, this Court included a stay into the Costs Order. [ 39 ] W also wrote, at p. 8: Once the Court becomes aware that it relied on other unquestioned evidence (ie [M’s] assertions of his actions as those of a friendly parent, and mine as an unfriendly parent) to draw conclusions, the integrity of it’s [ sic ] Decision is compromised. [ 40 ] When the underlying trial decision is not under appeal, determining the issue of costs pertaining to that trial will not be suspended simply because one side tells the Court that it disagrees with something in the decision, or with what it believes improperly

led to the decision. [ 41 ] Further, the opportunity to question evidence adduced at trial is at trial . An appeal of a costs decision is not an occasion to seek a second opportunity to refute evidence advanced at trial against one’s interests that a party, for whatever reason, elected to not question at the time. It is also not an occasion to challenge the findings of fact at trial or the trial strategy of the opposite party. [ 42 ] This is a full answer to W’s request that this court reconsider virtually all of the decisions at trial that went against her.

The same opportunity was accorded each party at trial to adduce whatever admissible evidence he or she wished on the live issues. [ 43 ] W requests this reconsideration “[i]n the interests of the Court ensuring it’s [ sic ] decisions are based on uncompromised evidence” saying “I request that the Court reconsider the requests in my January 30, 2012 Application ...”. The Court is interested in deciding the issues it hears on the basis of reliable, relevant and complete evidence. The testing of evidence by cross-examination serves, in part, to achieve this end.

However, as stated, W was accorded a full opportunity at trial to adduce evidence relevant to each of these issues and to test the evidence adverse to her positions. Furthermore, she has not demonstrated that anything has become known since January 30 th that could not have been known by reasonable diligence and presented to the Court with the January 30 th applications.

Therefore, this request is denied. [ 44 ] W also requests “leave of the Court to submit documentation supporting my costs for Trial.” She makes this request based upon the following: The Court incorrectly stated at the time of Costs Submissions, that both parties were unrepresented at the time Costs were dealt with, and therefore had equal opportunity to submit claims for trial Costs and Disbursements. [M’s] Bill of Costs was prepared by his Counsel at trial, Diann Castle, giving him an advantage over [W].

While treated as though he is on a level unrepresented playing field, his legal work (and knowledge of what and how much to apply for) was done for him. [M] terminated [the services of] Ms. Castle after she prepared his Costs Submission. [Emphasis in original] [ 45 ] In fact, contrary to W’s submission, the Court was correct. The parties were both “unrepresented at the time Costs were dealt with”. Further, this was not stated in the Costs Decision, but rather in this Court’s letter of February 2, 2012, that accorded W a further opportunity to satisfy the test for leave to appeal costs.

Nevertheless W makes a fair comment when she points out that the Bill of Costs M included with his submissions was prepared earlier by his counsel and that he was able to rely on his counsel’s knowledge of the sorts of disbursements for which costs may be recovered. [ 46 ] But this is of no consequence. The playing field was level regardless of representation or not. The Rules of Court are clear that they are to apply equally to represented and unrepresented litigants. This includes the Rules pertaining to costs awards.

Further, this issue was already decided in the aforementioned February 2, 2012, letter, following the January 30 th request of W. [ 47 ] If, by her request contained within her application for leave to appeal the Costs Decision W is separately seeking leave to appeal the February 2, 2012 decision in respect of this disbursement claim, that request is denied. Costs were awarded to M as the party achieving the greater degree of success. That award included disbursements.

Even if W’s additional $14,000 disbursement claim was substantiated by evidence, and was claimed in time for M to have opportunity to present any responding submissions to the Court, it was unlikely to have been awarded. Rarely does the loser recover disbursements from the winner, particularly when the loser is required to pay other costs of the opposite party.

Therefore any appeal on the purported, but unproven, $14,000 disbursement has no prospect of success. [ 48 ] W takes exception to an interlocutory ruling from months before commencement of the trial by the case managing justice, and then to my subsequent refusal to reverse that ruling early on in the trial. A second bilateral assessment had been ordered to occur before commencement of trial. Trial was ordered to proceed on a peremptory basis. The second bilateral assessment never got started because, in part, the parties disagreed for months on the terms of the order requiring the bilateral assessment.

The case management justice, in consideration of all the prevailing circumstances decided, among other things, to hold the parties to the peremptory trial dates. This

would not permit enough time for the originally intended bilateral assessment that W had wanted, though an alternate form of assessment was undertaken. As trial judge I did not grant W’s request to reverse, in effect, the case management justice’s decision. W now refers to this in support of her application for leave to appeal the costs decision.

She says, at p. 10: ... a Judgment without the due diligence of third-party assessment (ie-severing the issue of custody and access to accommodate the Bilateral Assessment, or delaying a Decision until court-ordered counselling has been undergone) is questionable at best and could border on negligence. [ 49 ] Regardless of any merit to W’s disagreement with these pre-trial and trial decisions, they are not relevant to an appeal of this Costs Decision. [ 50 ] W also argues that when the best interests of the children are involved in an issue before the Court there should not be an award of costs to either party, stating at page 7: “this should not be a Costs issue”. [ 51 ] I disagree.

This would have the effect of removing any risk of adverse consequence that ought to flow from advancing meritless arguments or positions, provided that the issue turned on the best interests of children. The existing practice enables the Court, in exercising its discretion on costs, to consider the relative merit of the positions espoused, including on issues turning on the best interests of children. This flexibility is not about to be exchanged for a more rigid free pass for parties to argue whatever they may contrive so long as the best interests of children are involved.

This argument has no prospect of success before the Alberta Court of Appeal. [ 52 ] In her submissions on this leave application W again refers to amounts allegedly owed to her by M that remain outstanding in respect of a flute and university costs for their eldest daughter. This was already addressed in the February 2, 2012, letter decision.

It is also not relevant to this leave application. [ 53 ] To summarize, W has not identified an issue arising from the Costs Decision for which she has both a good, arguable case having enough merit to warrant scrutiny by the Court of Appeal and that is of importance generally. She has no prospect of persuading the Court of Appeal that this Court’s discretion on the matter of costs following trial was not exercised judicially or constituted a “clear, palpable and overriding error”. The predominant concerns advanced by W pertain to the Court’s approach to and findings following trial.

Therefore, this application for leave to appeal the Costs Decision is denied. Heard by written submissions filed January 30 and February 9 and 16, 2012. Dated at the City of Calgary, Alberta this 28 th day of February, 2012. P. R. Jeffrey J.C.Q.B.A. Appearances:

L.D.W. Self-Represented K.D.M. Self-Represented