Jalota v Jalota, 2013 ABQB 559

Court of Queen ’ s Bench of Alberta Citation: Jalota v Jalota, 2013 ABQB 559 Date: 20130925 Docket: 4801 155470 Registry: Calgary Between: Monica Jalota also known as Monica Prihar Respondent/Plaintiff - and - Vivek Kumar Jalota Applicant/Defendant _ ________________________________________ ______________ Reasons for Decision on Costs of the Honourable Mr. Justice E.C.

Wilson _________________________________________ ______________ Introduction [ 1 ] After a two day trial I rendered my decision and concluded with the direction that if the parties were not able to agree upon costs, the matter would be decided by myself based solely upon written submissions. [ 2 ] The parties were not able to come to agreement and the matter has come back to me for decision.

Decision [ 3 ] Mrs. Jalota, as the successful party, should receive her costs but not in the quantum being sought. [ 4 ] Mrs. Jalota argues that this is a case for enhanced costs “due to the additional and unnecessary expense she incurred in successfully responding to Mr. Jalota’s application.” [ 5 ] I am not persuaded by her submission. Costs will be in accordance with

Schedule C, column 1. [ 6 ] This was a 2 day trial and notwithstanding that only two witnesses were called. Trial time was lost as a result of Mrs. Jalota offering testimony suggesting that she had tape-recorded proof that Mr. Jalota confessed to creating false financial documents. Trial time was lost as both counsel carefully reviewed the recording and, thereafter, reflected upon and discussed how this unexpected trial development would be handled.

Ultimately counsel agreed that the matter would not be pursued and that I banish all that evidence from my mind. [ 7 ] In the circumstances of this case and recognizing that the trial was directed on an expedited basis, I believe that Counsels’ course of action made good sense. [ 8 ] Mr. Jalota argues that the real trial time that should be reflected in any order for costs be reduced by one half day as the loss of actual trial time was triggered by the unexpected testimony from Mrs. Jalota.

Counsel estimates that approximately two hours of trial time was lost. [ 9 ] Neither in her original nor reply brief does Mrs. Jalota take issue with the time estimate or impact on trial length. [ 10 ] Regardless, I am satisfied that it caused wasted time and I am not prepared to reward the person whose testimony caused the adjournment. I am also satisfied that an appropriate discount, in all of the circumstances of this case, is one half day of trial time. In other words, the trial time for costs considerations is reduced from 2 days to 1 ½ days. [ 11 ] Mr.

Jalota’s submission is that the ill-fated attempt by Mrs. Jalota to allege fraud should be properly met with the denial of any costs. I disagree. [ 12 ] Mrs. Jalota’s testimony in this regard was not, as I recall, directly responsive to a question asked of her by her counsel. The sense I received is that both counsel were taken aback by Mrs. Jalota’s allegation. Thereafter, the recess occurred while the parties considered their position as I have earlier outlined. [ 13 ] The resolution was not to pursue the matter further and for me to banish the testimony from my mind.

I did so. [ 14 ] The parties were mindful of the time constraints imposed for this expedited summer trial. Mr. Jalota and his mother had flown from California to participate in this trial. [ 15 ] The issue at trial was whether Alberta or California was the forum conveniens for the matrimonial litigation. [ 16 ] An adjournment to permit either side to pursue or to counter the fraud allegation was problematic as the unavailability of counsel, the parties and the Court might unduly delay matters, past the allotted 2 days of trial – being a Thursday and Friday. [ 17 ] The parties were in charge of their cases.

It appeared to the Court that everyone was prepared to ignore this “hiccup” and to carry on to get the trial completed within that allotted time. [ 18 ] I am not persuaded that this case is an example of a party alleging fraud but then voluntarily abandoning that allegation triggering consequent cost ramifications. Here “the abandonment” was really dictated by the trial timelines and counsels’ joint agreement to ignore the evidence. Mrs. Jalota gave up the opportunity to prove her allegation and Mr. Jalota gave up his opportunity to disprove the allegation. Mr.

Jalota never had to respond to the allegation, let alone have to cross-examine on the allegation. It was never put to him when he testified. In the final analysis the allegation really became a matter of no moment. [ 19 ] With regard to the specific headings sought by Mrs. Jalota my ruling is as follows:

a) There will be no cost awarded for item 1(1) i.e. commencement documents etc. nor for item 7(1) relating to a contested application heard on May 24, 2013 before one of my colleagues. Neither of those matters relate to this interlocutory trial and the costs being awarded will only be related to this trial.

b) Regarding Item 10(1): preparation for trial. The column amount of $2,000.00 is awarded.

c) Regarding Item 11: Trial length. The costs to conduct this trial are awarded in the amount of $2,000.00 i.e. $1,000.00 for the first half day and $500.00 for each of the two additional half days which I have earlier determined to be the appropriate time consideration.

d) Regarding Item 12: Written argument. The award for the written submissions on costs is in the amount of $1,000.00. [ 20 ] In relation to item number 12, my Order recognizes that Mrs. Jalota was forced to proceed by way of written submissions because Mr. Jalota’s view had been that no costs should be paid at all. The award also takes into account the preparation and filing of the reply submission.

[ 21 ] Finally it appears the parties are also having difficulty resolving Mrs. Jalota’s charges for faxing and zeroxing. Her total, exclusive of GST, is $464.25. Mr. Jalota’s understanding is that Mrs. Jalota is only seeking $360.75. If the parties cannot resolve this part of their dispute then it can be taken before an Assessment Officer. Dated at the City of Calgary, Alberta this 25 th day of September, 2013. E.C. Wilson J.C.Q.B.A. Appearances: Sandra J. Hildebrand Hildebrand Wilde for the Respondent/Plaintiff Kathleen E. Wells Foster LLP for the Applicant/Defendant