Klychak v. Samchuk, 2012 ABQB 584

Court of Queen ’ s Bench of Alberta Citation: Klychak v. Samchuk, 2012 ABQB 584 Date: 20120924 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 _______________________________________________________ Endorsement of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

[ 1 ] The parties disagree on two aspects of the proposed form of order arising from my substantive decision - 2012 ABQB 85 - in these proceedings. As to the first issue, I agree with Mr. Samchuk that my decision did not contain any cap on the amount of legal financing he could obtain on the security of his property. That decision dealt with two separate potential remedies. The first was whether Mr. Klychak should pay advance, or interim, costs to Mr. Samchuk. I rejected that claim on the grounds, among others, that Mr.

Samchuk had not realistically addressed the cost of litigation. (I pause to note that, at least in the circumstances of this litigation, if I had accepted the proposed order for advance costs, I would have set those costs based on a solicitor/client estimate - where a taxing officer could review the bill of costs for reasonableness - rather than on the tariff - which might have been too low to actually obtain legal assistance - or on the basis of solicitor and own client or indemnity - which allows a non-reviewable bill of costs.) The second proposed remedy considered at that hearing was the postponement of Mr.

Klychak's second caveat; I granted that remedy. The form of order now proposed by Mr. Samchuk imposes a limit on the financing that he can obtain using the security of his property: see para. 2 of the draft Samchuk order which is a fulsome

interpretation of my reasons for decision. Not only is there no mention of a cap in my reasons relating to Mr. Klychak's postponement of his second caveat, there is nothing in the argument presented at the hearing to settle the minutes of the order which persuades me that I should now impose such a cap: Mr. Klychak should, of course, be protected relative to the monies he advanced to Mr. Samchuk to acquire the property, but, as I indicated in my decision referred to above, Mr. Klychak did not establish a prima facie claim to any additional interest in the Samchuk property. Therefore, Mr.

Samchuk should not be restricted from dealing with his own property as he sees fit. Moreover, although Mr. Samchuk might conceivably be the kind of person who would give up the hundreds of thousands of dollars of potential equity in the property merely to inflict an injury on Mr. Klychak, it is more probable that Mr. Samchuk will act in reasonable self-interest in protecting a valuable interest and that such self-interest will include negotiation with the law firm relative to its fees. [ 2 ] The second point of contention relates to the amount that Mr.

Samchuk should pay into an interest-bearing account to satisfy Mr. Klychak's first caveat. That caveat protects a promissory note in the amount of $150,000.00. No mention of interest or other financial feature is made in that note. However, the evidence before the court is that Mr. Klychak paid the real property taxes on the property for several, although not all contiguous, years; Mr. Samchuk did pay the real property taxes for at least one year. Mr. Samchuk has clearly received the benefit of Mr. Klychak's tax payments; therefore, it is appropriate that the amount that should be set aside for the payment of Mr.

Klychak's caveat be $162,500.00 rather than $150,000.00. [ 3 ] Since there has been divided success on the application to settle the minutes of the order, each party will bear their own costs of that hearing. Heard on the 14 th day of September, 2012. Dated at the City of Edmonton, Alberta this 21 st day of September, 2012. J.B. Veit J.C.Q.B.A. Appearances: Chad C. Bowie, Snyder & Associates LLP for Mr. Klychak

Jeremy L. Taylor, Field LLP for Mr. Samchuk