1400467 Alberta Ltd., Adderley Holdings Ltd., Herlick's Welding Ltd., Macpherson Pipeline & Oilfield Consulting Inc., Lynco Construction Ltd. Plaintiffs - v. -, 2013 ABQB 697

Court of Queen ’ s Bench of Alberta Citation: 1400467 Alberta Ltd. v Adderley, 2013 ABQB 697 Date: 20131128 Docket: 1103 12774 Registry: Edmonton Between: 1400467 Alberta Ltd., Adderley Holdings Ltd., Herlick's Welding Ltd., Macpherson Pipeline & Oilfield Consulting Inc., Lynco Construction Ltd. Plaintiffs - and - John Adderley, Colin Macpherson, Ivan Herlick, Jico Holdings Ltd., Ulster Cattle Corp., CJM Consulting Services Inc. and Clouded Moon Consulting Ltd. and Pro Canada West Energy Inc.

Defendants And Between: Colin Macpherson, John Adderley, John Adderley as the Trustee of the J&S Family Trust, Ivan Herlick, Jesse Herlick, Robyn Herlick and Tracey Herlick Plaintiffs by Counterclaim - and – 1400467 Alberta Ltd. and Lynco Construction Ltd. Defendants by Counterclaim _ ________________________________________ ______________ Endorsement of the Honourable Madam Justice J.B. Veit _________________________________________ ______________

[ 1 ] The defendants apply to vary an order for costs made in court on November 4, 2013. [ 2 ] On September 18, 2013, the court made an order requiring the defendants to pay, on a solicitor/client basis, the plaintiff’s thrown away costs for questioning scheduled for July 22-26, 2013. On September 20, 2013, plaintiff’s counsel forwarded to defendants’ counsel her bills of costs representing her costs claim. On November 4, 2013, counsel for the defendants stated in open court that the defendants accepted the plaintiff’s claim for costs; the parties then agreed to an instalment

schedule of payments, the first of which being due on November 15, 2013. Those aspects of the November 4, 2013 hearing were then set out in a proposed form of order which defendants’ counsel refused to sign. [ 3 ] On November 21, 2013, the defendants applied to vary the November 4, 2013 order relating to costs to allow them to tax the plaintiff’s bills of costs. [ 4 ] On November 26, 2013, I heard the defendants’ application for a variation.

On the same date, I directed the defendants to sign a form of order reflecting what actually happened on November 4, 2013. [ 5 ] On the variation application, defendants’ counsel states that she simply made a mistake on November 4, 2013: she didn’t realize that plaintiff’s counsel had submitted two bills of costs because plaintiff’s counsel’s correspondence had been addressed to another lawyer in her office who appeared to have carriage of the matter at the time.

She also states that, on November 4, 2013, she did not have her clients’ specific consents to pay the amount of costs claimed by plaintiff’s counsel in the September 20 correspondence. [ 6 ] The argument based on lack of consent is not persuasive: a long line of authority holds that when counsel appear in court and state that they are instructed the court does not inquire into counsel’s authority; counsel have the implied, apparent, ostensible, and ordinary authority of complete control over the way in which the case is to be conducted; and, indeed, practising barristers must not accept instructions which limit that ordinary authority: see, for example, Halsbury’s Laws of England, Fifth ed., 2009, vol. 66, paras. 1135-1140 and para. 1185. [ 7 ] However, the court has the inherent jurisdiction to vary or set aside an order where there has been a fundamental mistake of fact.

Because the two bills of cost are similar, I accept that defendants’ counsel made an honest mistake. Moreover, the plaintiff is not greatly prejudiced by allowing the application, at least from the perspective that the proposed variation will only allow what would have occurred absent the mistake, i.e. the taxing of a bill once the scale of costs has been set by the court.

Nonetheless, the plaintiff has been put to extra expense in dealing with this issue; therefore, whether or not the defendants are successful in taxing down the two bills of costs - and the taxing of a solicitor/client bill has unique implications – the defendants will, forthwith, pay to the plaintiff a total of $2,000.00 costs of the November 4 and November 26 appearances on this issue. Heard on the 26 th day of November, 2013. Dated at the City of Edmonton, Alberta this 28 th day of November, 2013. J.B. Veit J.C.Q.B.A. Appearances: Carmen L. Plante, Bishop & McKenzie LLP for the Plaintiffs Deborah A.

McGuire, Robert B. White Q.C. and Company for the Defendants