Louw v. Hamelin-Chandler, 2012 ABQB 52

Court of Queen ’ s Bench of Alberta Citation: Louw v. Hamelin-Chandler, 2012 ABQB 52 Date: 20120125 Docket: 1103 09352 Registry: Edmonton Between: Deon F. Louw Applicant - and - Frances Hamelin-Chandler Respondent _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Peter Michalyshyn _______________________________________________________ [ 1 ] The parties have been unable to agree on costs following Dr. Louw's unsuccessful application decided at 2011 ABQB 517 . [ 2 ] Ms. Hamelin-Chandler ("Ms.

Chandler") takes the position solicitor-client costs are called for largely on account of Dr. Louw's alleged misconduct in the litigation. Dr. Louw of course opposes such costs, denies misconduct, and counters that any ordinary

Schedule C costs payable to Ms. Chandler should be offset by a costs award against her for the within hearing. [ 3 ] For reasons which follow, misconduct is not made out and no solicitor-client costs are awarded. I do find a case made out for enhanced costs in Ms. Chandler's favour. Background

[4] Dr. Louw applied originally for an order restraining Ms. Chandler from contacting him, amongst others, and for an order thatthe court screen certain future complaints Ms. Chandler may make against him to the College of Physicians & Surgeons of Alberta(CPSA). Dr. Louw's application also sought an order that the court screen certain related inquiries Ms. Chandler may make to the Officeof the Information and Privacy Commissioner (OIPC) and to the Alberta Human Rights Commission (AHRC). [5] Through counsel Dr. Louw appeared initially before me by way of originating application in morning chambers on June 23,2011.

Ms. Chandler was present, duly served, but without counsel. I adjourned the application on the basis time would not permit aproper hearing of the evidence and issues raised. Counsel was invited to seek an order permitting the matter to be heard on an expeditedbasis as a special chambers application. [6] Within a week time was found and the application was scheduled to proceed - coincidentally before me - on June 30, 2011. [7] When the parties appeared before me June 30, 2011, Ms. Chandler was again without counsel. She requested anadjournment to seek to retain a lawyer.

The request was denied but on the basis that whether through counsel or otherwise she wasentitled to submit further evidence and written argument in response to Dr. Louw's position. Any further materials were to be filed byJuly 15, 2011. Dr. Louw was permitted to respond by July 22, 2011. [8] Ms. Chandler retained counsel and within less than two weeks a thorough brief was prepared and filed on her behalf by theJuly 15, 2011 deadline. Dr. Louw filed a response July 21, 2011. [9] Dr.

Louw's original application was dismissed on the basis he failed to persuade me that the court should screen complaintsor inquiries to the CPSA, OPIC or AHRC. Assuming without deciding that the court had any such authority, I decided in any event, andin the context of an RJR-MacDonald Inc. v. Canada (Attorney General), (SCC), [1994] 1 SCR 311 analysis, thatDr. Louw's evidence of harm failed to justify the relief sought. As part of that analysis I commented that on balance no order should begiven "...the effect of which would be to intimidate [Ms.

Chandler] from pursuing her own statutory rights" vis-a-vis the CPSA inparticular. Finally, I found insufficient evidence existed to support granting the restraining order sought. [10] In all, I concluded the application clearly lacked merit. Its outcome was not a close call, not in law or on the evidence. Solicitor-client costs [11] That being said, I did not find in my decision and do not agree with Ms. Chandler's submission now that Dr. Louw’sapplication "...was a reprehensible attempt to manipulate the Court and its processes ..." I disagree with Ms. Chandler's submission thatDr.

Louw's application was a deliberate attack on her character, honesty and integrity or that "...statements and comments made by Dr.Louw were calculated to intimidate and insult Ms. Chandler in an attempt to dissuade her from contesting Dr. Louw's wrongful andmisguided attempt to control her." [12] On June 30, 2011 Ms. Chandler agreed on an interim basis to have no contact with Dr. Louw and to bring no furthercomplaints to the CPSA and to make no related inquiries to the OIPC or AHRC. At the time she denied any wish to have contact or tomake further complaints or any inquiries.

She could have asked to have the interim order revisited on appropriate notice. She now allegesthe interim order amounted to an abuse of this court's process. That position is without merit. [13] I reject any suggestion by Ms. Chandler that through counsel Dr. Louw intentionally attempted to deprive the court of theCPSA's input or for that matter, the input of the OPIC or AHRC. I did note in my original decision the absence particularly of theCPSA's position. I did not then - and do not now - assume however any improper motive in that regard on the part of Dr. Louw or hiscounsel. [14] Dr. Louw alleged Ms.

Chandler was engaged in a "campaign of harassment" against him. That allegation appears in hisaffidavit and is repeated in his written submissions, including those addressing costs. There is no disputing that Dr. Louw may have felt,

subjectively, subject to a campaign of harassment. In dealing with his original application I made no specific finding that Dr. Louw hador had not proven the existence of such a campaign on an objective basis. I do not intend now to make further findings on the merits. It isenough to repeat that on the original application I found insufficient evidence of harm to justify the relief sought.

That evidence or lackof it included the events giving rise objectively to the alleged "campaign of harassment". [15] That said, proven or not the evidence before me backing up a "campaign of harassment" falls short of what attractssolicitor-client costs consequences. [16] To paraphrase Ross J. from Waste Management of Canada Corporation v. Thorhild (County), 2009 ABQB 157, thethreshold of wrongdoing that is required for an award of costs on a solicitor and client basis is very high, Young v.

Young, (SCC), [1993] 4 SCR 3: Solicitor-client costs are generally awarded only where there has been reprehensible, scandalous oroutrageous conduct on the part of one of the parties." For reasons stated above, and taking into account the authorities argued before meby counsel, I find there has been no such conduct by Dr. Louw. [17] Much of the rest of the costs dispute before me turns frankly on the use of words and phrases in the respective filed briefs ofcounsel, including the briefs filed in support of the within costs hearing. There is little to be gained by attempting to create a

summary ofthe parties' respective written positions. Let it be said however that neither side's briefs can be held up as models of civility. Nor do theycross the line however in favour of solicitor-client costs. I mention both because it is a two-way street, but of course the unsuccessfulparty is the primary target for a costs award. Enhanced costs [18] However difficult it is to make a case for solicitor-client costs, the grounds for a discretionary increase in taxable costs aremuch broader: Waste Management of Canada Corporation v. Thorhild (County), 2009 ABQB 157. [19] Through counsel Ms. Chandler provided me with a draft of a

Schedule C bill of costs. The parties are defaulted to Column 1owing to the operation of Rule 1(4) of

Schedule C of the Alberta Rules of Court: Unless the Court otherwise orders, (

a) when a remedy is given in a judgment or order other than or in addition to the payment of money, or (

b) when judgment is given for a defendant in an action in which a remedy other than or in addition to the payment of money issought, costs must be assessed according to the higher of Column 1 of the tariff in Division 2 [The Tariff], and the scale that would have appliedif the other remedy had not been given or sought. [20] As noted by Berger J.A. in RIC New Brunswick Inc. v.

Telecommunications Research Laboratories, 2011 ABCA 10, aswith the previous rule the court of course retains a residual discretion to award costs above column one, which I will address presently. [21] Dealing first however with fee items to which she may be entitled, regardless of column, Ms. Chandler appeared before metwice, each time without counsel. She filed no "commencement documents" (Item 1(1) of

Schedule C). She was unsuccessful in heradjournment application (Item 7(1) of

Schedule C). She was ultimately successful on the merits heard June 30, 2011. She was withoutcounsel on June 30, 2011. As noted, she retained counsel not long afterwards, and written argument was filed on her behalf. No furtherappearances were made until this costs application.

[22] It is doubtful in the circumstances that as a self-represented party Ms. Chandler would be entitled

Schedule C costs for anysteps in which counsel was not involved, e.g., items 1(1) and 7(1): L.L. v. G.B. 2009 ABQB 322. [23] On the other hand, there appears to be little disagreement that with the assistance of counsel she is entitled to recover at leastSchedule C costs for Item 8(1) for the ultimately successful June 30, 2011 application plus brief filed by counsel July 15, 2011. [24] Without more then, Ms. Chandler would be entitled to $1,000 in costs, together with disbursements and any other amounts(e.g., GST) she may be entitled to claim. [25] Turning then also to Rule 1(4) of

Schedule C, in addition to RIC New Brunswick Inc. v. Telecommunications ResearchLaboratories I have considered the following authorities, some of which were decided under the former but analogous rule (Rule 605(6),read together with the

preamble to

Schedule C): Lameman v. Alberta, 2011 ABQB 532; Broers v. Real Estate Council of Alberta, 2010ABQB 774; Waste Management of Canada Corporation v. Thorhild (County), 2009 ABQB 157; Turner v. Turner, 2008 ABQB 747;Main v. Jeerh, 2006 ABCA 236; Freyberg v. Fletcher Challenge Oil and Gas Inc., 2006 ABCA 260; International Association ofMachinists and Aerospace Workers, Local Lodge No. 99 v. Finning International Inc., 2006 ABQB 594; Potato Growers of Alberta v.Canadian Food Inspection Agency, 2005 ABQB 530; Archmetal Industries Corp. v. Jag Flocomponents (North America) Inc., 2004ABQB 939, Eggertson v.

Alberta Teachers' Association, 2003 ABCA 101; Court v. Alberta (Environmental Appeal Board), 2003ABQB 912; Alberta (Municipal Affairs) v. Telus Communications Inc., 2003 ABCA 260; Chancellor Management Inc. v. OasisHomes Ltd., 2002 ABQB 500; and Acquest/Alberta Mining Inc. v. Barry Developments Inc. (1999), (AB KB), 254A.R. 357, 1999 ABQB 1018. [26] As a starting point, where there is no amount involved [non-monetary remedy], or where it is impossible to calculate, Column1 of

Schedule C applies unless the court orders an enhanced scale: Freyberg v. Fletcher Challenge Oil and Gas Inc. [27] As to an enhanced scale, the following factors flow from the cases: (

a) the outcome was of particular importance to the parties: RIC New Brunswick Inc. v. Telecommunications ResearchLaboratories; Freyberg v. Fletcher Challenge Oil and Gas Inc.; Eggertson v. Alberta Teachers' Association; notwithstanding thematter may be of limited if any importance to the 'general public': Broers v. Real Estate Council of Alberta; where "the issues on which[the successful party prevailed] were important not only between the parties, but also to the community at large": Waste Management ofCanada Corporation v.

Thorhild (County); International Association of Machinists and Aerospace Workers, Local Lodge No. 99 v.Finning International Inc.; Chancellor Management Inc. v. Oasis Homes Ltd.; and finally, Court v. Alberta (Environmental AppealBoard); (

b) the successful party incurred significant liability to retain legal counsel: Eggertson v. Alberta Teachers' Association;commensurate with the importance of the issues: International Association of Machinists and Aerospace Workers, Local Lodge No. 99v. Finning International Inc.; and a liability which could deter the party and others similarly situated from participating in publicaffairs: Waste Management of Canada Corporation v. Thorhild (County); (c) "exceptional circumstances" were found: Lameman v. Alberta (e.g., an adjournment attributed entirely to the costs-payingparty); (

d) the successful party needed to defend his or her reputation or standing: Eggertson v. Alberta Teachers' Association; WasteManagement of Canada Corporation v. Thorhild (County); (

e) the issues were complex: Broers v. Real Estate Council of Alberta; International Association of Machinists and AerospaceWorkers, Local Lodge No. 99 v. Finning International Inc.; Chancellor Management Inc. v. Oasis Homes Ltd.; Acquest/AlbertaMining Inc. v. Barry Developments Inc.; Archmetal Industries Corp. v. Jag Flocomponents (North America) Inc.

[ 28 ] None of the cases suggest Rule 1(4) costs may be enhanced on account of a finding the litigation was merely without merit or misconceived. [ 29 ] Applying the numerous factors, I am influenced particularly by those cases which speak to the importance of the issue to the parties, here particularly to the successful party, and, in terms of precedent, to the public. Ms. Chandler was called on to oppose an application the effect of which, I have found, would be to intimidate her from exercising her own statutory rights. It was important that she oppose the application. It was important to her subjectively.

It was important too objectively, in the sense of the public interest in knowing that such an application should rarely, if ever, succeed. [ 30 ] I am influenced as well by the fact Ms. Chandler was, in the end, amply assisted by counsel. The application, while not complex, nor as mentioned not much in doubt, still required an unequivocal response on the merits. The written submissions of Ms. Chandler's counsel in that regard were of much assistance, and factor into my consideration of enhanced costs. I note that in B & R Development Corporation Ltd. v.

Trail South Development Inc. , 2011 ABQB 706 , Smith J., in a conventional costs assessment not involving rule 1(4) of

Schedule C, tripled the usual tariff amount on the basis it was too low given the usefulness of a brief of written final argument. [ 31 ] At the end of the day and for the reasons stated Ms. Chandler is entitled to a global amount of enhanced costs of $5,000, inclusive of all fee items, disbursements and other amounts to which she may be entitled, including the within costs hearing in which success was divided. Heard on the 29 th day of September, 2011. Dated at the City of Edmonton, Alberta this 24 th day of January, 2012. Peter Michalyshyn J.C.Q.B.A. Appearances: William B. Hembroff Bennett Jones LLP for the Applicant Jeffrey B. Champion Q.C. Bishop & McKenzie LLP for the Respondent