West Edmonton Mall Property Inc. v International Stereo Centres Ltd. (Urban Audio Video), 2012 ABQB 223

Court of Queen ’ s Bench of Alberta Citation: West Edmonton Mall Property Inc. v International Stereo Centres Ltd. (Urban Audio Video), 2012 ABQB 223 Date: 20120404 Docket: 0703 09178 Registry: Edmonton Between: West Edmonton Mall Property Inc. Plaintiff - and - International Stereo Centres Ltd. O/A Urban Audio Video, 823895 Alberta Ltd., Roger v. Watson Professional Corporation, Roger Watson, and Mark Yusishen Defendants _______________________________________________________ Memorandum of Decision of L.A.

Smart, Master in Chambers _______________________________________________________ Background [ 1 ] The Defendants seek to set aside the default judgment obtained in this action as against them. In support of the application affidavits were filed by the defendant Dr. Roger B. Watson and his spouse Mrs. Janet Watson. The Plaintiff sought to question those deponents. Dr. Watson appeared for questioning on April 13, 2011. Minutes into the questioning matters became confrontational between Mr. Keohane and Mr. Dhir. This continued throughout the questioning for slightly less than one hour when Mr.

Keohane and his client left before questioning was completed. Subsequently an application was brought to compel Dr. Watson and Janet Watson to appear for questioning without further payment of conduct monies and for an award of costs for the application and thrown away costs of the uncompleted questioning on a solicitor and client basis.

[ 2 ] At the application Mr. Keohane indicated that he took no objection to questioning continuing without additional conduct money and an order was given for the Watsons to attend at a date to be agreed upon. I reserved on the issue of costs. Discussion [ 3 ] Many allegations were made by both counsel as to the inappropriate manner in which the questioning proceeded. It was readily apparent that many of the allegations were not in evidence although at that point I had not had an opportunity to review the transcript.

Both counsel were invited to file affidavit material to support the respective allegations of misconduct and both declined to do so. I was asked to read the transcript and make my determination with respect to costs after that review. [ 4 ] Civility or perhaps more correctly lack of civility in the legal profession has been a serious topic of discussion by many law societies and bar associations. It is fair to say that is also a concern of the Court. Almost one hour in morning chambers was taken by counsel making serious allegations against one another.

When reading the transcript it is apparent that there was a confrontation early. There are numerous interjections and objections. Statements were made that questioning was discourteous and that there were inappropriate facial gestures, and denial that such things were occurring. Both lawyers complained about the other’s editorialization of what was transpiring. [ 5 ] As one might expect, after reading the transcript, it is simply not possible to determine who is to "blame" for the questioning to deteriorate to such a state that one of the parties felt it necessary to leave.

After hearing the arguments and complaints of both counsel, even if there was evidence provided, it is impossible to reconcile what transpired. Frankly, it is disappointing that counsel found it necessary to air their grievances with each other in open court before members of the public. It served only to potentially diminish the public's respect for the administration of justice while diminishing respective counsel's reputation and that of the legal profession generally.

Decision [ 6 ] When two young children squabble and it is impossible to determine which of them is the culprit, the solution is often to send both to their room. It strikes me that I am dealing with an analogous situation. After considerable reflection, I resist the temptation to award costs as against each counsel payable to the clerk pursuant to Rule 10.49 and direct that the parties shall each bear their own costs. Dated at the City of Edmonton, Alberta this 3 rd day of April, 2012. L.A. Smart M.C.C.Q.B.A. Appearances: S.K. Dhir for the Plaintiff

E.M. Keohane for the Defendants