356201 Alberta Ltd. operating as Low Cost Lumber Plaintiff - v. -, 2013 ABQB 35

Court of Queen ’ s Bench of Alberta Citation: 356201 Alberta Ltd. (Low Cost Lumber) v. Feehan, 2013 ABQB 35 Date: 20130106 Docket: 0303 10593 Registry: Edmonton Between: 356201 Alberta Ltd. operating as Low Cost Lumber Plaintiff - and - Edward R. Feehan, Duncan & Craig LLP and Phillip J. Cunningham Defendants _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice E.C.

Wilson _______________________________________________________ [ 1 ] The parties have not been able to reach agreement on costs after my decision whereby I granted the Defendants’ application for a non-suit at the conclusion of the Plaintiff’s case. As previously directed, they now seek the Court’s decision based solely upon written submissions. [ 2 ] The written submissions received via courier from Defendants’ counsel are dated December 14, 2012. The written rebuttal submissions received via fax from the owner/operator of the Plaintiff company, Mr. Ernie Williams, are dated December 17, 2012.

[ 3 ] Mr. Williams now represents himself, having discharged his trial counsel on or about December 11, 2012. [ 4 ] Having been entirely successful the Defendants are entitled to their costs as envisioned by Rule 10.29. Further, my decision granting the non-suit puts the Defendants in the position of having “beat” their formal offer to settle which was served upon Mr. Williams on August 17, 2007.

Thus, pursuant to Rule 4.29 the Defendants are entitled to double costs for steps taken in this action thereafter. [ 5 ] The Plaintiff resists the award of costs principally because he is of the view that the Defendants had failed to more clearly state its defence prior to the trial; more particularly in the content of the Defendants’ brief filed for an earlier and aborted J.D.R. [ 6 ] I disagree with the Plaintiff for two reasons. [ 7 ] First, I am satisfied that the essence of the Defendants’ non-suit application was contained at paragraph 59 of its J.D.R. brief. Thus the Plaintiff was put on notice.

Whether it was read or properly understood or appreciated by the Plaintiff and/or his counsel is something far different. The Defendants have no responsibility to act as the Plaintiff’s legal advisor. [ 8 ] Second, I note that the complaint advanced by the Plaintiff does not appear to fall within any of the statutory considerations enumerated within Rule 10.33(2) which could prompt a court to consider denying or varying a costs award.

There is no allegation of subterfuge or trickery in the Defendants’ conduct. [ 9 ] There is no merit to the Plaintiff’s claim for a reduction or denial of costs to which I have found the Defendants are otherwise entitled. [ 10 ] Accordingly the Defendants are also entitled to a further $500 in costs relating to the preparation of the written submissions required to support its claim for costs. [ 11 ] Lastly, I have examined the Bill of Costs and find all items to be proper and find all disbursements to be proper and in reasonable amounts. [ 12 ] Accordingly I set costs without the requirement of further taxation in the total amount of $24,741.36 and I will sign the draft Judgment Roll provided.

Heard on the 20 th day of November, 2012 Dated at the City of Calgary, Alberta this 11 th day of January, 2013.

E.C. Wilson J.C.Q.B.A. Appearances: Ernie Williams Principal of the Plaintiff Phyllis A. Smith for the Defendants