Equitable Trust Company v Richardson, 2013 ABQB 411

Court of Queen ’ s Bench of Alberta Citation: Equitable Trust Company v Richardson, 2013 ABQB 411 Date: 20130719 Docket: 0901 08221 Registry: Calgary Between: The Equitable Trust Company Plaintiff (Appellant) - and - Neil John Richardson, The Lougheed Block Inc. and Hugh Daryl Richardson Defendants (Respondents) _______________________________________________________ Costs Decision of the Honourable Madam Justice B.E.

Romaine _______________________________________________________ [ 1 ] In a decision dated June 29, 2012 relating to an appeal of a master’s decision, the issue of costs was left open for discussion among the parties: Equitable Trust Company v. Richardson , 2012 ABQB 411 .

The parties are unable to agree and have made submissions on costs of the appeal and of the application before Master Hanebury. [ 2 ] Equitable Trust submits that it is entitled to its costs both on appeal and before the Master on a solicitor and own client basis, relying on a clause in the mortgage on the Lougheed Block that provides for such costs “in exercising or enforcing or attempting to

enforce or in pursuance of any . . . remedy . . . [under the mortgage].” Equitable Trust notes that this provision was not modified by eitherthe First or the Second Renewal Agreement. [3] Equitable Trust also relies on Canada Mortgage and Housing Corp. v. Honkong Bank of Canada (1991), 1991 ABCA 4 , 112 A.R. 85, 75 D.L.R. (4th) 561.

While the appellant in that case was awarded solicitor-client costs in a situation where themortgage included language similar to the language in this case, the Court also referenced the respondent’s failure to have “clean hands”,and awarded costs against them despite their success on the appeal. It is not clear which factor was the determining factor. [4] Despite the ambiguity of that decision, it is clear that this mortgage, like most, provides for recovery of solicitor and ourclient costs by its terms, and this is a significant factor in considering costs. [5] Krayzel Corp. and Mr.

Richardson on behalf of Heritage Property Corporation, the Lougheed Block Inc. and HughRichardson submit that Equitable Trust had mixed success on the appeal, as I dismissed the appeal with respect to DefaultAdministration Charges. I cannot agree, and said as much in the decision. Equitable Trust was successful on the major issues.

Therefore,I award Equitable solicitor and client costs of both appeal and the hearing before the Master against Lougheed Block Inc. [6] There is, however, no contractual reason to award solicitor and client costs against Krayzel Corp., Hugh Richardson,Heritage Property Corporation or Heritage Capital Corporation and I find that Equitable Trust is entitled to costs against these parties inboth the matter as before the Master and on appeal as taxed under

Schedule “C” of the Alberta Rules of Court on a double Column 5basis, to be set-off against any recovery of costs from the Lougheed Block Inc. under the mortgage on a solicitor and own client basis insuch a manner as to avoid double recovery. [7] Mr. Richardson submits that the parties previously agreed that the issue of costs in this appeal should be determined by theCourt of Appeal, relying on emails relating to the appeal from Master Hanebury. I can find no such agreement with respect to the appealbefore this Court from these exchanges.

However, Krayzel submits that Equitable Trust has agreed among counsel that payment of suchcosts is to be stayed pending all appeals, relying on an email from Mr. Price to Mr. Mainwood dated November 25, 2011. As thisappears to be the agreement, payment of costs awarded in this ruling shall be stayed pending appeal. Dated at the City of Calgary, Alberta this 19th day of July, 2013. B.E. Romaine J.C.Q.B.A. Appearances: Francis Price, Q.C. of Reynolds, Mirth, Richards & Farmer LLP for the Plaintiff (Appellant)

Neil Richardson for the Defendants (Respondents) The Lougheed Block Inc., Hugh Robertson and Heritage Property Corporation Scott Watson and Brent Mescall of Parlee McLaws LLP for Krayzel Corp. Brent Mainwood of Mainwood Legal Services for Heritage Capital Corporation