Klychak v. Samchuk, 2012 ABQB 314

Court of Queen ’ s Bench of Alberta Citation: Klychak v. Samchuk, 2012 ABQB 314 Date: 20120511 Dockets : 0703 11199, 0803 10406, 0803 13340 Registry: Edmonton Docket: 0703 11199 Between: Albert Klychak Plaintiff - and - Donald Samchuk Defendant And between: Docket: 0803 10406 Albert Klychak Plaintiff - and - Donald Samchuk Defendant And between: Docket: 0803 13340 Donald Samchuk Plaintiff - and - Anfred & Co. Inc. and Albert Klychak Defendants _______________________________________________________ Memorandum of Decision re Costs of the

Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Mr. Samchuk ’ s request for costs, based on Column 4 of the tariff but enhanced by a relatively small increase to reflect the complexity of the applications, is opposed by Mr. Klychak who proposes costs in the cause on the grounds that there was, at the worst from his perspective, mixed success on the applications before the court and that the court ’ s substantive decision in effect gave Mr. Samchuk costs. [ 2 ] Mr. Samchuk is entitled to the order which he seeks; the court orders the payment by Mr. Klychak to Mr. Samchuk of costs in a lump sum of $5,500.00.

Cases and authority cited [ 3 ] By the court: Klychak v Samchuk 2012 ABQB 85 , [2012] A.J. No. 118 1. Background [ 4 ] The background to this application can be found in the substantive decision, the citation for which is set out above. [ 5 ] For the purposes of this application it is sufficient to note that Column 4 was chosen because two of the properties that were the subject of the applications were worth over $500,000.00 each.

As to the length of the hearing, the court sat on two separate occasions, for long half-days in each case; in this context, “ long ” refers to the fact that, with the cooperation of counsel and court staff, the court was able to sit longer than regular court hours. A third hearing on a third date was required for the determination of costs. Those sittings entitle the successful applicant to a total of $3,500.00. [ 6 ] The tariff states that a court can increase the costs set out in the tariff where it is of the view that the matters before the court were complex.

Here, both parties agree that the issues were, in fact, complex. [ 7 ] The rules also provide that the court can take into account, in relation to costs, whether a party started separate actions for claims that should have been filed in one action: R. 10.33(2)(c). While the court did find in this case that Mr. Klychak should have filed his claims in one action, that finding has no effect on the amount of costs to be awarded here. On the one hand, Mr.

Klychak was not successful; therefore, the court doesn ’ t have to wrestle with the issue of whether he should get two sets of costs for what should have been one application. On the other hand, Mr. Samchuk did not have to address Mr. Klychak ’ s claims in two separate appearances so the court doesn ’ t have to wrestle with the issue of whether he should get two sets of costs for what was dealt with in one application. [ 8 ] Mr. Samchuk states that he had to make quite large disbursements for photocopying, given that his affidavit had 18 pages and 40 exhibits and that his brief had 24 pages and that Mr.

Klychak lives out of province. Indeed, Mr. Klychak does not oppose the amount claimed for disbursements. [ 9 ] Mr. Samchuk states, and Mr. Klychak does not contest, that his solicitor-client costs are more than double the amount of costs that he is claiming.

[ 10 ] In total, Mr. Samchuk is asking for a lump sum award of costs in the amount of $5,500.00. 2. Who was successful on the applications? [ 11 ] The parties acknowledge that costs are in the discretion of the court. However, that discretion must be exercised judicially. Where there are established principles relating to the award of costs, the court should not deviate from those principles without explaining the reasons for that departure. One of the general principles in the award of costs is that costs are paid by the loser to the winner.

The first contested cost issue is, therefore, who was the winner on these applications? [ 12 ] Mr. Klychak asserts that he was successful on at least three of the five applications that were before the court and that, at the worst from his perspective, there was mixed success which would not entitle Mr. Samchuk to costs. [ 13 ] With respect, Mr. Klychak has not properly measured success. With respect to the contempt application, it is true that Mr. Samchuk did not proceed with his application to have the court find Mr.

Klychak in contempt for failing to provide an affidavit of records in a timely way, or even after having been ordered by the court to make such disclosure, but that is because Mr. Klychak finally complied with the previous court orders to complete disclosure two days before the scheduled hearing in this matter. In any event, the potential contempt issue was a very minor issue in these proceedings, given that the failure to provide the affidavit of records was, as predicted by Mr. Klychak, what amounted to a technical breach since Mr.

Samchuk already had an affidavit of records from the principal of the corporate defendant and the corporate party ’ s records did not differ in any substantial way from the records provided by the individual litigant. [ 14 ] There were really two main issues before the court: the first was whether the various actions should be consolidated or tried together and the second was whether Mr. Klychak should fund Mr. Samchuk ’ s litigation by supplying advance costs in one of two alternate ways proposed by Mr. Samchuk. [ 15 ] On the first question, Mr.

Klychak opposed both an order for consolidation and an order that the actions be tried together. He lost; the court ordered that the actions be tried together. [ 16 ] On the second question, as a first position Mr. Klychak opposed any funding by himself of Mr. Samchuk ’ s litigation. During the course of the hearing, for the first time, Mr. Klychak accepted, as a fall-back position, the postponement of his second caveat on Mr. Samchuk ’ s property. By that time, of course, preparation for the application had been completed; indeed, the first day of the hearing had been completed. Therefore, Mr.

Samchuk was not able to save costs by foregoing the hearing. In essence, Mr. Klychak capitulated to Mr. Samchuk ’ s arguments. It is clear, however, that Mr. Samchuk was obliged to vigorously prosecute his application for advance costs in order to obtain a concession on that issue by Mr. Klychak. [ 17 ] In the result, Mr. Samchuk was successful on both his applications; barring some overarching factor unrelated to success on the applications, he is entitled to costs. 3. Has Mr. Samchuk already received an order for costs? [ 18 ] With respect, Mr. Klychak is simply in error when he argues that Mr.

Samchuk has, effectively, received an order for costs as part of the court ’ s substantive decision. All the court gave to Mr. Samchuk was the right to raise money to spend on litigation from property legally owned by him. If Mr. Samchuk had been employed, he could have used his earnings to fund his litigation; the use of those earnings would never be equated with costs. In this context, costs is the amount which may be awarded by the court to one of the litigants to re-imburse that litigant for a portion of the legal fees and disbursements expended during the litigation. Here, Mr.

Samchuk did not receive advance costs from Mr. Klychak; he was merely provided with the opportunity of using his land to raise money for legal fees and disbursements. Therefore, the court ’ s substantive decision in the matter does not provide a basis for denying to Mr. Samchuk the costs to which he would ordinarily be entitled.

4. Costs of the costs application [ 19 ] The costs of the costs hearing were already calculated in Mr. Samchuk ’ s request for costs. Therefore, although he has been successful on his application for costs, that success has already been taken into account in the lump sum costs award mentioned above Heard on the 16 th day of March, 2012. Dated at the City of Edmonton, Alberta this 11 th day of May, 2012. J.B. Veit J.C.Q.B.A. Appearances: Jeremy L. Taylor, Field LLP for Mr. Samchuk Chad C. Bowie, Snyder & Associates LLP for Mr. Klychak