Cooper v Cooper, 2013 ABQB 117

Court of Queen ’ s Bench of Alberta Citation: Cooper v Cooper, 2013 ABQB 117 Date: 20130220 Docket: 1001 15958 Registry: Calgary Between: Michael David Cooper Applicant/Plaintiff - and - Dawn Michele Cooper (also known as D. Michele Cooper and as Dawn Michele Tiegen), Cope 378/Insurance Corporation of British Columbia Pension Plan, Insurance Corporation of British Columbia and ABC Corporation Respondents/Defendants _______________________________________________________ Memorandum of Decision on Costs of the Honourable Madam Justice C.L. Kenny _______________________________________________________ [ 1 ] Mr.

Cooper applies for solicitor and own client costs with respect to legal fees he has incurred in order to recover his share of pension benefits provided to him in a matrimonial property contract. Background [ 2 ] The parties entered into a matrimonial property and trust agreement dated April 27, 2007. As part of that agreement Mr. Cooper was entitled to a share of Ms. Cooper ’ s pension plan. In the agreement she agreed to designate her husband as beneficiary of his

share and leave that designation in place until such time as his share of the pension plan was registered in his name. She agreed that shewould be the trustee of his interest in the pension benefits and that she would owe all duties of a trustee to a trust beneficiary with respectto that interest. She failed to do what she contracted to do. [3] In December of 2009, Mr Cooper learned that Ms. Cooper had left her employment with ICBC. He sent emails and requestsfor information on his share of the pension. Ms.

Cooper’s response was that she had transferred all of the benefits into an unspecifiedaccount in her name and refused to provide further information despite repeated requests. [4] Mr. Cooper engaged legal counsel. Over five months in 2010 counsel attempted to obtain information from Ms. Cooperabout the plan and Mr. Cooper’s interest in that plan. Ms. Cooper ignored all communications and counsel was unable to obtain anyinformation about the plan from ICBC without Ms. Cooper providing consent to release that information.

She refused to do so. [5] Finally an Originating Notice was filed on October 27, 2010 seeking division of the pension benefits and disclosure ofinformation. That Motion also sought solicitor and client costs. In December of 2010, Ms. Cooper retained legal counsel. [6] It appears that when Ms. Cooper left ICBC she took part of her pension benefits in cash and rolled over the balance of thepension benefits into a LIRA in her own name. Counsel for Mr. Cooper sought documents from ICBC and from Scotiabank who is theholder of the LIRA.

Those documents were eventually received in January of 2011. [7] A draft order was then forwarded by counsel for Mr. Cooper to counsel for Ms. Cooper to effect the division of the pensionbenefits. No reply was received to that nor three follow-up letters. Finally in August of 2011, counsel for Mr. Cooper sought to return toCourt on the basis of the original Application and sought updated information from Scotiabank as to the balance in the LIRA. OnSeptember 8, 2011, Scotiabank advised that Ms. Cooper has revoked her authorization for disclosure of information. [8] With no response from Ms.

Cooper or counsel for Ms. Cooper and no further information available from Scotiabank,counsel for Mr. Cooper brought a further application for a division of pension benefits in August of 2012. On August 28, 2012, counselfor Mr. Cooper provided counsel for Ms. Cooper with a new draft order which was identical to the draft order provided April 5, 2011except for updated financial numbers. There were then nine requests for adjournment by Ms. Cooper’s counsel between August 22, 2012and January 24, 2013. During that time, on October 19, 2012, counsel for Ms.

Cooper returned the order duly signed but struck out theclause dealing with costs. Counsel had sought solicitor and own client costs. Finally this matter came before me after furtheradjournments to deal with the issue of costs. It had taken from December of 2009 to October of 2012 for Mr. Cooper to receive that towhich he was entitled pursuant to the agreement. The Law [9] Absent an agreement with respect to the issue of costs, payment of solicitor and own client costs are granted only inexceptional circumstances. Jackson v Trimac Industries Ltd. (AB KB), 1993 CarswellAlta 310, 8 Alta.

L.R. (3d) 403,[1993] 4 W.W.R. 670, 138 A.R. 161. [10] Some of the factors to be considered in awarding solicitor/client costs as they pertain to this matter are as follows: 1. Blameworthiness in the conduct of the litigation by a party; 2. Cases where justice can only be done by a complete indemnification for costs;

3. Where there is evidence that a party did something to hinder, delay or confuse the litigation, where there is no serious issue offact or law which required lengthy, expensive proceedings, where the positively misconducting party was “contemptuous” of theaggrieved party in forcing that aggrieved party to exhaust legal proceedings to obtain that which was obviously his. 4.

An attempt to deceive the Court and defeat justice, an attempt to delay, deceive and defeat justice, a requirement imposed on theplaintiff to prove facts that should have been admitted ... unnecessary adjournments, concealing material documents from the applicant,and failing to produce material documents in a timely fashion. 5. Where the party was guilty of positive misconduct, where others should be deterred from like conduct and the party should bepenalized beyond the ordinary order of costs. 6. Where the party is found to be acting fraudulently and in breach of trust.

Jackson v Trimac Industries Ltd. (AB KB), 1993 CarswellAlta 310 paras 29 to 34 [11] As stated by Justice Hutchinson in Jackson v Trimac (supra) at para. 41: Where the positive misconduct of the party which gives rise to the action is so blatant and is calculated to deliberately harm the otherparty, then despite the technically proper conduct of the legal proceedings, the very fact that the action must be brought by the injuredparty to gain what was rightfully his in the face of an unreasonable denial is in itself positive misconduct deserving of indemnificationwhether punitive damages are awarded or not.

Such positive misconduct must be taken into account one more time on the costs issue touse the words of Madam Justice Veit in Sonnenberg. Analysis [12] This is a case which falls directly within the parameters set out in Jackson v Trimac (supra) justifying an award of solicitorclient costs. Ms. Cooper signed a contract in which she agreed to designate her husband as the beneficiary of her pension benefits andthen to act as a trustee over those benefits until a transfer had taken place.

Not only did she not do that, she in fact left her employment,transferring all of the benefits into cash and a locked in LIRA in her own name. When follow up correspondence was sent to her to seekinformation on the pension benefits, she refused to respond. At one point after having granted consent for disclosure of information fromthe pension authorities, she revoked that authorization. [13] Mr. Cooper had to start a court action and bring an application which he then brought back on numerous occasions in order toobtain what was clearly and rightfully his. Ms.

Cooper acted fraudulently and in breach of trust in converting pension benefits which didnot belong to her into her own name and then did everything she could to delay and hinder Mr. Cooper from obtaining what wasrightfully his. [14] Solicitor and own client costs however must bear some resemblance to the quantum in dispute. I note that ultimately Mr.Cooper received approximately $56,000 as his share of the pension proceeds. The legal fees claimed which he paid to his solicitor inorder to recover those funds exclusive of disbursements were in the sum of approximately $28,000.

It would be inappropriate to awardsolicitor and own client costs in that sum given the amount in dispute. Decision [15] I will award solicitor and own client fees in the sum of $15,000 plus reasonable disbursements in this matter. Counsel mayprepare the Order for my signature.

Heard on the 16 th day to 24 th day of January, 2013. Dated at the City of Calgary, Alberta this 20 th day of February, 2013. C.L. Kenny J.C.Q.B.A. Appearances: Rita M. Richardson for the Applicant John Davison, Q.C. for the Respondent