Mo v Ha, 2012 ABQB 29

Court of Queen ’ s Bench of Alberta Citation: Mo v Ha, 2012 ABQB 29 Date: 20120112 Docket: FL01 03401 Registry: Calgary Between: Cherry Mo Plaintiff - and - Brian Ha Defendant _______________________________________________________ Memorandum of Decision on Costs of the Honourable Madam Justice C.L. Kenny _______________________________________________________ Introduction [ 1 ] This matter came before me as binding JDR. The matter was set for a six day trial and just before the trial date the parties agreed to have me conduct a binding JDR in order to reach a final resolution with respect to all outstanding matters. Background

[2] The parties were involved in a common law relationship. Actions were brought under the Family Law Act and a Statement ofClaim was filed claiming unjust enrichment. This allowed the parties to deal with their property and issues of child and spousal support. Issues [3] There were seven days of discoveries, three consent orders and seven contested applications, three of which resolvedthemselves by way of consent at the last moment. The disclosure applications dealt primarily with efforts by Ms. Mo to obtaininformation from Mr.

Ha in order that she could determine the appropriate quantum of child and spousal support along with a division ofproperty. Obtaining support even when ordered was difficult and obtaining document production was extremely difficult. [4] In May of 2010 Ms. Mo made a formal offer to settle under the rules of court. She takes the position that the ultimateresolution of this matter exceeded her offer.

While it is difficult to determine exactly what the offer was in monetary terms as it involvedthe transfer of a piece of property, it appears that the offer and the ultimate resolution were within approximately four thousand dollars ofeach other. [5] Ms. Mo seeks solicitor client costs. In the alternative she seeks double party/party costs from the date of the offer or in thealternative, an increase in the party/party costs to reflect the principals set out in the Rules of Court with respect to the awarding of costs. [6] Mr.

Ha argues that this was difficult litigation involving a party who was a dismal record keeper and through the hard workof both the parties and counsel the matter was ultimately resolved and settled at the JDR. It is Mr. Ha’s position that solicitor client costsare inappropriate and should only be reserved for the most serious cases such as misconduct, fraud and other deliberate actions. It shouldbe noted that the solicitor client costs of Ms. Mo are significant given that she was required to institute and diligently pursue this matterand all applications in order to obtain the information required.

Law [7] The leading decision on solicitor client costs in Alberta is set out in Jackson v Trimac Industries Ltd., (ABQB). A number of factors were listed which the Court can consider when determining whether solicitor client costs are warranted.Ms. Mo points to the first four of those factors as she suggests they apply in this case. 1. Circumstances constituting blameworthiness in the conduct of the litigation by that party. 2. Cases in which justice can only be done by a complete indemnification for costs. 3.

Where there is evidence that the plaintiff did something to hinder, delay or confuse the litigation...where the positivelymisconducting party was “contemptuous” of the aggrieved party in forcing that aggrieved party to exhaust legal proceedings to obtainthat which was obviously his. 4.

An attempt to deceive the court and defeat justice, an attempt to delay, deceive and defeat justice...concealing material documentsfrom the plaintiffs and failing to produce material documents in a timely fashion. [8] In addition, Rule 10.33 of the Alberta Rules of Court sets out what the Court may consider when making a costs award. Itreads as follows: 10.33(1) In making a costs award, the Court may consider all or any of the following:

(

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.

(2) In deciding whether to impose, deny or vary an amount in a costs award, the Court may consider all or any of the following: (

a) the conduct of a party that was unnecessary or that unnecessarily lengthened or delayed the action or any stage or step of the action; (

b) a party's denial of or refusal to admit anything that should have been admitted; (

c) whether a party started separate actions for claims that should have been filed in one action or whether a party unnecessarily separated that party's defence from that of another party; (

d) whether any application, proceeding or step in an action was unnecessary, improper or a mistake; (

e) an irregularity in a commencement document, pleading, affidavit, notice, prescribed form or document; (

f) a contravention of or non-compliance with these rules or an order; (

g) whether a party has engaged in misconduct. [ 9 ] Pursuant to Rule 10.31(1) the court has the discretion to award party/party costs, solicitor-client costs or a lump sum instead of or in addition to assessed costs. Parties Positions [ 10 ] Ms. Mo suggests that the actions of Mr. Ha entitle her to solicitor-client costs or in the alternative an increased award of party/party costs. She says that his non-compliance with court orders and delays in providing disclosure and undertakings required her to bring many applications to enforce court orders or provide information.

The information that had to be analysed was also complex including valuation of two businesses and a holding company in Calgary as well as two other businesses in New Brunswick. A business valuator had to be hired in order to assist in determining values. In addition to Counsel for Ms. Mo doing most of the legal work in order to obtain information, Ms. Mo also offered to settle a year before the JDR at a number around where the parties eventually ended up settling. Had this offer been accepted, Ms.

Mo would not have incurred significant additional costs in preparing for trial and continuing to try to obtain information. [ 11 ] Counsel for Mr. Ha points out that there was no misconduct or contemptuous or deceitful action by Mr. Ha in having this litigation proceed. Mr. Ha has virtually no document system and therefore finding anything was difficult. In addition to that he has a significant debt outstanding with the Canada Revenue Agency and many of his documents were with his accountants in trying to deal with that difficulty. Mr.

Ha points out that a claim of unjust enrichment is a much more difficult claim to deal with than one of a division of property within a marriage where the rules are much more straight-forward. All of this required extensive examinations and a great deal of work on both sides. [ 12 ] An ultimate resolution also required cooperation between the parties in order to pay off existing debt and obtain mortgage financing which was not contemplated in the offer from Ms. Mo. As counsel for Mr. Ha indicates, it is difficult and not appropriate in hindsight to say the course of litigation could have taken a different path.

In the end the parties did work towards a resolution despite difficulties throughout the litigation. Mr. Ha indicates that it is not appropriate for the court to award solicitor-client costs but acknowledges that party-party costs are appropriate and leaves the quantum at the discretion of the court.

Costs Award [ 13 ] Having reviewed the written submissions of both parties and heard oral argument on this issue, I am satisfied that this is not a case for solicitor-costs but does warrant an order of enhanced costs. [ 14 ] While every family law file requires give and take by the parties to reach an agreed upon settlement, two things stand out here that warrant increased costs. One is the amount of work required by Ms. Mo to get disclosure and analyse the information. She in fact was paying legal counsel and accountants to do Mr. Ha’s accounting which he admits was dismissal.

This should not rest exclusively at her feet. In addition, it is clear that the offer a year earlier was more than reasonable given the ultimate outcome yet Ms. Mo incurred considerable legal coss in that year simply bringing the matter to a conclusion. I have considered these matters in reviewing the Bill of Costs provided by Ms. Mo. [ 15 ] I therefore set fees in this matter at $45,000 plus reasonable disbursements. Heard on the 19 th day of October, 2011. Dated at the City of Calgary, Alberta this 12th day of January, 2012. C.L. Kenny J.C.Q.B.A. Appearances: Elise J.

Lavigne/Roxanna Petts for the Plaintiff John S.D. Kong for the Defendant/Respondent