Yi v. Varadi (Key Homes Inspections), 2013 ABQB 441

Court of Queen ’ s Bench of Alberta Citation: Yi v. Varadi (Key Homes Inspections), 2013 ABQB 441 Date: 20130802 Docket: 1203 15763 Registry: Edmonton Between: Yeon Sook Yi Appellant - and - Richard Varadi, Operating As Key Homes Inspections Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ Background [ 1 ] In written reasons issued on the 1 st of May, 2013, now reported at 2013 ABQB 201 , I dealt with an appeal from the Provincial Court Decision in this matter.

At trial the Provincial Court awarded the Plaintiff $4,325.00 in damages. I allowed the appeal by the Plaintiff in part, and increased the net damages payable to the Plaintiff to $13,623.75. Accordingly the Plaintiff ’ s was not successful on all issues on the appeal but it is nevertheless submitted that she should receive her full costs on the basis of

Schedule C Queen ’ s Bench Costs in view of the outcome of the appeal. The Plaintiff further argues that she is entitled to double costs because I awarded her more on appeal that she offered to settle for in a formal offer. [ 2 ] The Plaintiff/Appellant advised the Court that it had served a formal offer of settlement under the Rules of Court on October 31, 2012 with respect to the appeal, and that offer was not accepted. The net award that I made to the Plaintiff/Appellant of

$13,623.75 was larger than the amount offered by the Plaintiff/Appellant being $10,267.78. Accordingly under Rule 4.29(1), thePlaintiff/Appellant submits they should be entitled to double costs under

Schedule C, Column 1. Furthermore the Plaintiff/Appellantsubmits that she receive judgment for all disbursements incurred as a result of the appeal, and the disbursements she incurred with respectto the original trial. The disbursements on appeal requested are $1,055.20, and the disbursements at trial that should be awarded are$200.00 in view of the outcome of the appeal. [3] The Defendant/Respondent submits that costs should be awarded to the Plaintiff/Appellant where it had success, and nocosts where it did not have success.

Similarly the Defendant/Respondent should have costs where the Plaintiff/Appellant did not havesuccess, which should have costs for the Plaintiff/Appellant had success. It is submitted that a 50/50 split based on the equal amount oftime spent on the issues could be used to determine costs in this matter, but that

Schedule C Queen’s Bench, and double costs areinappropriate in any even for an appeal from Provincial Court. [4] Counsel for the Defendant/Respondent submits that

Schedule C costs are not relevant to an appeal from a Provincial CourtDecision since there is no provision in

Schedule C or in the Alberta Rules of Court relating to an appeal to the Court of Queen’s Benchfrom the Provincial Court. Given that such an appeal is not contemplated by the Rules of Court, particularly

Schedule C, theDefendant/Respondent submits that the “double costs rule” should also not apply to an appeal of a Provincial Court Decision.Accordingly Rule 4.29 is inapplicable, and this Court should not reassess the costs awarded in the Provincial Court to reflect the amountof the judgment ultimately granted on appeal. [5] This appeal involved two issues: 1. Whether the trial judge erred in his approach to damages. 2.

Whether the trial judge erred by reducing the damages due to the concept of “betterment”. [6] In my Written Reasons I concluded that the Plaintiff/Appellant was successful on the first issue, but was unsuccessful onthe second issue. Conclusion [7] While the Plaintiff/Appellant was not successful on all of the issues on appeal, this is no reason to deprive an otherwisesuccessful Appellant of their costs as discussed in Sidorsky v. CFCN Communications Limited 1999 ABCA 140 , 1999ABCA140 as follows at paragraphs 1 and 2 : [1] The Court has considered the written submissions of the parties.

The appellants had partial success on appeal and the amountinvolved was significant. Costs were awarded. However, the facts and circumstances do not justify a multiple column award. [2] The appellants are entitled to a party and party costs of the appeal based on a single mutiple of Column 6 under the previousSchedule C. There are no costs to the respondents. [8] The mixed success herein however should be reflected in the costs award. Accordingly 50% of the costs otherwise payableby the Defendant/Respondent will be awarded to the Plaintiff/Appellant. [9] I conclude that the

Schedule C costs are still appropriate and applicable for an appeal of a Provincial Court Decision to theCourt of Queen’s Bench, notwithstanding that there is no specific provision for this in

Schedule C. Although my colleague Veit, J.generally disagreed with this proposition in Condominium Plan 8022962 v. Malinowsky, 2005 ABQB 346, and Mahar v. EdmontonDream Cleaners Ltd, 2005 ABQB 37, I conclude that the quantum of

Schedule C column 1 costs are relatively modest, and the

categories provided for in

Schedule C for an appeal are generally equally applicable to appeals to the Court of Queen ’ s Bench from the Provincial Court. Specifically I conclude that the

Schedule C costs are appropriate for an appeal of a Provincial Court Decision to the Court of Queen ’ s Bench in the current matter given it ’ s complexity and issues of law. [ 10 ] Similarly Rule 429(1) should also apply to an appeal of a Provincial Court Decision.

Rule 429(1) reads as follows: Subject to subrule (4), if a plaintiff makes a formal offer to settle that is not accepted and subsequently obtains a judgment or order in the action that is equal to or more favourable to the plaintiff than the offer, the plaintiff is entitled to double the costs to which the plaintiff would otherwise have been entitled under rule 10.31(1)(a) [Court-ordered costs award] or 10.32 [Costs in a class proceeding] for all steps taken in relation to the action or claim after service of the offer, excluding disbursements. [ 11 ] As such since the purpose of Rule 429(1) is to encourage formal offers of settlement, and to award double costs where formal offers of settlements are not bettered at trial or on appeal, this Appellant is entitled to double costs for making a formal offer to settle that was superceded by my ultimate Decision. [ 12 ] Accordingly the fees in respect of the appeal should be calculated under

Schedule C: (

a) Part 1: Commencement documents $1000.00 and (

b) Part 8: Application requiring written briefs first half day $1000.00 for a total fee of $2000.00. This figure should be doubled because of the formal offer which was not accepted. The Plaintiff/Appellant should also receive interest pursuant to the Judgment Interest Act RSA 2000 as the Provincial Court Judge allowed interest pursuant to the Judgment Interest Act and there is no reason not provide for this. [ 13 ] In respect of the Provincial Court trial, the trial judge awarded fees of $450.00 in accordance with their usual practice to award costs amounting to 10% of the amount recovered.

Accordingly now that the final judgment has been increased, the fees of Provincial Court in accordance with my Decision should be increased to $1,362.37 (10% of $1,3623.75). The disbursements awarded in the original trial were $1,167.78 for the Expert Witness plus $100 filing fee. The filing fee in Provincial Court is $100 for claims up to $7,500.00, and $200 for claims more than $7,500.00.

As a result of the outcome of this appeal, this disbursement should in fact be $200, instead of $100 awarded by the trial judge because his judgment was for $4,325.00 and mine is now $13,623.75. [ 14 ] The disbursements on this appeal are granted as follows: Courier Fees $51.00 Runner Fees $12.00 Photocopies (726 copies x 0.15) $108.90 Registered Mail $9.30 Alberta Law Libraries $18.50 Transcript Management $855.50

Total Costs of Appeal $1,055.20 [ 15 ] The total of all of these fees and disbursements should be reduced by a factor of 50% however to reflect the mixed success of the Plaintiff/Appellant on appeal. Heard on the 6 th day of July, 2013. Dated at the City of Edmonton, Alberta this 31 st day of July, 2013. Donald Lee J.C.Q.B.A. Appearances: Brian Doherty Doherty Schuldhaus LLP for the Appellant Mark Crisp Tarrabain & Company for the Respondent