Lyons v. Baldwin, 2012 ABQB 137

Court of Queen ’ s Bench of Alberta Citation: Lyons v. Baldwin, 2012 ABQB 137 Date: 20120229 Docket: 1004 00404 Registry: Grande Prairie Between: Christina Lyons Plaintiff - and - Alvin William Baldwin and Derek Gavin Van Tassell Defendant _______________________________________________________ Memorandum of Decision of L. A. Smart, Master in Chambers _______________________________________________________ [ 1 ] The Defendant Van Tassell applies to vary a cost award made against him on January 13, 2011 in his and his counsel’s absence.

Applications were set down by him to be heard (after a number of adjournments) on that date in Grande Prairie. Arrangements had originally been made for Van Tassell’s counsel to attend via telephone conference. Subsequently, due to a general direction from the Masters, counsel was to be directed to appear in person. At the application the Clerk informed me that counsel had been advised of this requirement. As no one was in attendance on behalf of Van Tassell when they were to be heard, counsel for Lyons sought dismissal of the applications.

Instead of dismissing the applications, I directed that they be adjourned sine die.

[2] Lyons’ counsel then sought thrown away costs for preparation for the application as he would have to re-brief at a later dateand it would be necessary to re-attend in Grande Prairie. After further representations, costs of $600 (being approximately ½ of ScheduleC) was awarded plus airfare if the application was to proceed at a later date. [3] Based on the representations and evidence before me, I accept that the Clerk had been mistaken and that Van Tassell’scounsel had not been informed of the requirement to attend in person. The consequence was most unfortunate.

It is fair to say that VanTassel and his counsel are not to blame for the non-attendance but neither is Lyons. [4] I am guided by the decision of Justice Ritter (as he then was) in Goddard v. Day 2000 ABQB 799 , [2000] A.J. No.1340 (QB) where he describes the general situation where a party may be responsible for an adjournment but may not be described as “atfault” and by Justice Veit’s decision in Lines v.

Brinks [1994] No. 757 (QB) where she articulates the general principle that: “The costsof (the) prejudice must be borne by the party whose actions necessitated the adjournment.” [5] As unpalatable as I find this result, I decline to vary my previous Order as to costs. In doing so, I hasten to add that oneshould not characterize this decision as punishment for objectionable misconduct or otherwise. Nor is it a situation where blame per se isthe issue but rather who should bear the costs as a consequence of the adjournment.

Although acting properly and in good faith, it wasthe actions of the Applicant that necessitated it. [6] There will be no costs in relation to this application. Dated at the City of Edmonton, Alberta this 29th day of February, 2012. L. A. Smart M.C.C.Q.B.A. Appearances: Pierre G. Asselin Durocher Simpson Koehli Erler for the Plaintiff, Christina Lyons V. Cox Chatwin LLP for the Defendant, Derek Gavin Van Tassell