Scott & Associates Engineering Ltd. Plaintiff - v. -, 2012 ABQB 26

Court of Queen ’ s Bench of Alberta Citation: Scott & Associates Engineering Ltd. v. Ghost Pine Windfarm, LP, 2012 ABQB 26 Date: 20120111 Docket: 1001 01977 Registry: Calgary Between: Scott & Associates Engineering Ltd.

Plaintiff - and - Ghost Pine Windfarm, LP, Fortuna GP, Inc., Fortuna Limited Partner Holding, ULC, Nextera Energy Canada, ULC and Nextera Energy Resources, LLC Defendants _______________________________________________________ Reasons for Judgment on Costs of Chief Justice Neil Wittmann _______________________________________________________ Introduction [ 1 ] This Court decided an application to set aside two orders for service outside of the jurisdiction (“the ex juris orders”): Scott & Associates Engineering Ltd. v. Ghost Pine Windfarm, LP , 2011 ABQB 630 .

The application of Nextera Energy Resources, LLC (“Nextera USA”) to set aside the ex juris orders obtained by Scott & Associates Engineering Ltd. (“SAEL”) was successful. At the conclusion of those Reasons, I stated “The Applicant [Nextera USA] will have costs of this application, pursuant to

Schedule C of the New ARC [Alberta Rules of Court] Column 5, payable forthwith.”

[ 2 ] On December 2, 2011, I received a letter submission from Nextera USA with respect to the quantum of costs and the scope of the word “application” in the circumstances. This letter was responded to by SAEL on December 11, 2011, submitting a different meaning to the scope of the word “application”in the context.

Each party also submitted a draft Bill of Costs. [ 3 ] On December 30, 2011, I wrote the parties asking them whether they were agreeable to the Court deciding the costs application on the basis of their written submissions and on January 3, 2012 I received a notification from the parties that they were agreeable to me doing so. The Position of SAEL [ 4 ] The position of SAEL is that the term “costs of this application” should be restricted to $2,000 in accordance with item 8 (1) of

Schedule C of Column 5 of the New ARC. [ 5 ] Further, SAEL’s submission states that Nextera USA’s Bill of Costs is consistent with the request put forward in the written brief which was for “an order for costs of the within application and all steps previously taken with respect to same” whereas the Court did not add the words “and all steps previously taken with respect to the same” and that therefore Nextera USA’s costs, if they were to be awarded for the application, should include only item 8(1) of the New ARC. [ 6 ] Counsel for SAEL further submitted that on another interlocutory application earlier in 2011 before Mr.

Justice Mahoney, Scott & Associates Engineering Ltd. v. Ghost Pine Windfarm, LP , 2011 ABQB 339 , he awarded costs in the following terms, at para 64: The application is dismissed and one set-off costs for one counsel are payable to the Respondents, their contested special application requiring written briefs under Column 5 including an additional half day for cross-examination. [ 7 ] SAEL points out that unlike Mr. Justice Mahoney, I did not elaborate or clearly specify any additional tariff items beyond “costs of this application”.

In addition, SAEL submits that I did not specify that disbursements, in addition to the applicable tariff items were awarded. On a somewhat unrelated concept, SAEL also has indicated that because this was the first case under the New ARC determining whether there is still a requirement that a plaintiff seeking to serve a party outside the jurisdiction has a “good arguable case”, some consideration ought to be accorded the importance of this issue.

The Position of Nextera USA [ 8 ] Nextera USA put forward a proposed Bill of Costs which included the oral questioning on the affidavits of Bryan Scott and attendance at the questioning of Laura Cantave under item 5 of

Schedule C. In addition, Nextera USA claims item 7(1), a contested application before Mr. Justice Hall on February 8, 2011. In this regard, the order of Mr. Justice Hall of February 8, 2011 was put before me. That application permitted the Plaintiff (SAEL) to file additional affidavits which consisted of documents available in the public domain that may be relevant to the issue of service ex juris . Mr.

Justice Hall further ordered that Nextera USA was given leave to file a supplemental brief for the special application that was ultimately heard by this Court and stated that costs of the application were “reserved to the judge who hears the special application”, namely this Court. [ 9 ] With respect to disbursements, Nextera USA claims a number of amounts totalling $1,131.62 including GST for binders, tabs, couriers, copies of the briefs and compendiums (2,820 pages at 15 cents per page) and the transcript of the questioning of Bryan Scott and Laura Cantave.

The total requested costs payable by SAEL to Nextera USA is $7,631.62 according to the Bill of Costs submitted by Nextera USA. As stated, the total suggested by SAEL is $2,000. Analysis

[ 10 ] The New ARC came into force November 1, 2010. The general rule for claiming of litigation costs in the New ARC states as follows: 10.29

(1) A successful party to an application, a proceeding or an action is entitled to a costs award against the unsuccessful party, and the unsuccessful party must pay the costs forthwith, notwithstanding the final determination of the application, proceeding or action, subject to ... [ 11 ] Of course, the “subject to” includes the Court’s general discretion, any particular rules governing who is to pay costs under particular circumstances such as directions in an enactment and an application or proceeding which is heard without notice to a party. [ 12 ] The Court notes that the factors to be considered by a Court in making a costs award include those set forth in the New ARC 10.33 which rule is not significantly different from the old Alberta Rules of Court (“Old ARC”).

There is much case authority in Alberta on a variety of considerations in making a costs award but in this case, the parties have joined issue only over two matters, as follows: 1. When the Court indicated that Nextera USA would have costs of the application, did it mean to include all of the steps in the application or only tariff item 8(1)? 2. Does this case involve a novel issue or is it a case of first instance under the New ARC deserving of a reduced costs award in any event? I will deal with each issue in turn.

The Meaning of “Costs of this Application ” in the Circumstances [ 13 ] In the decision rendered by Mr. Justice Mahoney on May 20, 2011 referenced by counsel for SAEL, 2011 ABQB 339 , SAEL brought an application for a determination that certain parts of the Respondents’ producible documents were not privileged. As stated earlier, Mr.

Justice Mahoney dismissed the application and in so doing stated at paragraph 64: The application is dismissed and one set of costs for one counsel are payable to the Respondents for a contested special application requiring written briefs under Column 5 including an additional half-day for cross-examination. [ 14 ] The Court appreciates that the attention to detail by Mr. Justice Mahoney in making his costs award is commendable. It avoids any dispute between counsel as to what the Court meant by “costs of this application” by detailing the steps in the application for which costs are payable.

When this Court made its costs award, it confesses to not having considered these details simply because it assumed or presumed that costs of the application would include all reasonable and proper steps that were reasonably performed by the parties in order to tender their written briefs and appear to argue the case orally. This Court intended that Nextera USA would have costs for attendance upon questioning of its witness for cross-examination on affidavit and for the cross-examination of SAEL’s officer on his affidavit. [ 15 ] The contested application before Mr.

Justice Hall on February 8, 2011 resulted in Mr.

Justice Hall making an order allowing the Plaintiff SAEL to file additional affidavits, allowing the SAEL to file a further affidavit, allowing Nextera USA to file a supplementary brief for the special application heard by this Court, denying SAEL an adjournment of this application that was to be heard March 1, 2011, directing a special application of SAEL to compel further and better affidavits of records from certain of the Respondents and directing Bryan Scott to attend a questioning of his affidavit prior to the special application for further and better affidavits of records.

His order stated in paragraph 7: Costs of this application are reserved to the judge who hears the special application on March 1, 2011.

[ 16 ] In considering this question, I have re-examined the written briefs submitted by the parties with respect to the issue of costs. The applicant Nextera USA requested ... “an order for costs of the within application and all steps previously taken with respect to the same ...”. [ 17 ] The Respondent SAEL requested ... “costs for the February 8, 2011 hearing in front of Mr. Justice R.J.

Hall ... and costs for this hearing” ... [ 18 ] Other than these references, I can find nothing to assist the Court in the written briefs on the issue of costs. [ 19 ] The New ARC 10.33 includes many of the considerations to be taken into account by a Court in the exercise of its discretion in making a costs award that were contained in the Old ARC 601(1), (2). [ 20 ] I turn again to the order of Mr. Justice Hall made February 8, 2011.

SAEL asks for costs of the application giving rise to this order and Nextera USA asked for costs of this order as it pertains to steps necessarily taken to further or advance the application to strike the two ex juris orders. [ 21 ] Considering all of the facts and circumstances made available to me about the order of Mr. Justice Hall, I have decided that there will be no costs of that order. I do so because it would appear to me on the face of the order that success was divided. SAEL was permitted to file an additional affidavit with respect to the issue of service ex juris .

Nextera USA was permitted to file a supplementary brief for the special application. SAEL was refused an adjournment of the application then set for March 1, 2011. Bryan Scott was directed to attend for questioning on his affidavit prior to the special application for further and better affidavits of records. [ 22 ] The remainder of the steps leading to the hearing of the special hearing of the special application before me on May 4, 2011 as well as item 8(1) will be the subject of a costs award in favour of Nextera USA against SAEL.

For greater certainty this will include item 5 - attendance at cross-examination of Bryan Scott October 22, 2010 on his affidavits and of Laura Cantave on November 10, 2010, for a total of $3,000. The amount claimed for the hearing of the application to set aside the ex juris orders in the sum of $2,000 is also allowed. Thus, the fees portion of the award of costs will be $5,000. [ 23 ] With respect to disbursements, all disbursements must be reasonable. I see nothing in the submissions to the effect that the disbursements are unreasonable.

Indeed, the transcripts of questioning or cross-examination on affidavits are necessary and properly before the Court. New ARC 6.20(5) indicates as follows: The questioning party must ... (

b) file the transcript unless the Court otherwise orders. [ 24 ] The proper quantum of costs is $5,000 fees and $1,131.62 disbursements, for a total of $6,131.62. Whether the decision involves a novel point of law which would justify a reduction or variation of the costs otherwise awarded [ 25 ] I now turn to SAEL’s submission, implicitly, that I should consider the importance of the issues of “this complex landmark case” involving the

interpretation and application of New ARC 10.33(1)(

c) on the issue of whether a “good arguable case” must be shown. The Court regards this argument in a similar fashion to that of Ritter, J. (as he then was) when he commented in Goddard v. Day , 2000 ABQB 942 at paragraph 62 : Finally, I am satisfied that a party raising a novel defence or claim should be responsible for costs which may ensue when that novel defence or claim is dismissed.

[ 26 ] I agree with this statement absent any exceptional circumstances or context. This is private commercial litigation, not public interest litigation. Moreover, I do not regard the argument that a “good arguable case” is no longer required under the New ARC as being novel. As was pointed out in the judgment, the requirement of a “good arguable case” was never set forth expressly under the Old ARC, nor is it set forth expressly in the New ARC.

Thus, the Court has some difficulty in appreciating how the issue is novel. [ 27 ] The Court therefore declines to temper the costs award following the event on this ground. Conclusion [ 28 ] Costs of an application should include all reasonable steps in it. That is implied in any statement that a party is entitled to costs of an application. Reasonable disbursements are also included.

Therefore, in accordance with the previous calculations, the party and party fees will be fixed at $5,000 as the fee portion of the costs of this application to which will be added the reasonable disbursements in the sum of $1,131.62 for a total award of $6,131.62. [ 29 ] In addition, I am awarding Nextera USA party and party costs of this costs application which I fix at $500 all inclusive on the basis this costs application was decided on the basis of letter submissions by counsel without the necessity of an oral hearing or written briefs.

Thus, the total payable by SAEL to Nextera USA is the sum of $6,631.62, payable forthwith. Dated at the City of Calgary, Alberta this 11 th day of January, 2012. Neil Wittmann C.J.C.Q.B.A. Appearances: J.E. Fletcher for the Scott & Associates Engineering Ltd. R.V. Reichelt for Nextera Energy Resources, LLC