Solis v del Rosario, 2014 ABQB 651

Court of Queen ’ s Bench of Alberta Citation: Solis v del Rosario, 2014 ABQB 651 Date: 20141024 Docket: 1203 10206 Registry: Edmonton Between: Carmen Solis, Jose Solis, Maria Cunanan, Megnonette Biasbas, Bernard Biasbas, noriel Favis, Lolita Favis, Ma Cecilia Ignacio, Divina Favis, Maria Meteo, Delia Aceret, Dina Acosta Aceret, Jenny Welch, Zita Casas, Brian Adam, Ma Victoria Amparo, Josephine Ponce, Richard Ponce, Belen Senin, Rico Senin, Mayeene Manuel, oksana Kulhawy, Rolito Abrio, Rubilie Abrio, Maria Jimenez, Ephraim Holganza, leo Munez, Nena Munez, Sherlyne Javier, Ludivina Delos Santos, Maria Eloisa, edgardo Abiad, Mellany Fontanilla, Marites Lopez Castro, Juancho Calalang, adoracion Francisco, Russel Asuncion, Erlinda Muraya, Dean Muraya, Marcelino Pana, Zenith Ganob, Elvira Agbarca, Art Tugas, Eulalia Macugay, Lilibeth Hidalgo and Josefina Aquino Plaintiffs - and - Carmelita del Rosario, Sammy del Rosario, Darlene Doe and the Workers' Compensation Board Operating As Millard Health Defendants _______________________________________________________

Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ Background [ 1 ] On July 31, 2014 I issued written Reasons for Judgment now reported at 2014 ABQB 310 granting a

summary dismissal application and dismissing the Plaintiff’s action against the Workers’ Compensation Board (“WCB”). The Plaintiffs had brought a vicarious liability claim against the WCB, operating as Millard Health. The Plaintiffs now seek a stay with respect to the enforcement of the costs awarded in favour of the WCB that was part of my July 31, 2014 decision. [ 2 ] Furthermore the parties cannot agree upon two cost issues.

The first costs issue is whether the Plaintiffs are jointly and severally liable for the entire costs award in favour of the WCB, or whether each Plaintiff is liable for his or her own respective share of the total amount. The second costs issue is whether a formal offer served by the WCB on the Plaintiff’s on August 3, 2013 made at the time the WCB filed the application seeking

summary dismissal, entitles the WCB to double costs from and after that date. The formal offer was for discontinuance of this action against the WCB with costs payable only on a scale of Column 3 of

Schedule C of the Rules of Court , as opposed to

Schedule 4 of the Rules of Court which the WCB would have been entitled to given the quantum sought in the Statement of Claim. Issue 1 – Does the Formal Offer Entitle WCB to Double Cost for all Taxable Tariff Items after August 8 th , 2013? [ 3 ] Rule 4.29 of the Alberta Rules of Court is the applicable rule with respect to formal offers, and it states: 4.29

(2) Subject to subrule (4), if a defendant makes a formal offer to settle that is not accepted and a judgment or order in the action is made that is equal to or more favourable to the defendant than the offer, the defendant is entitled to costs for all steps taken in the action in relation to the action or claim after service of the offer.

(3) A defendant is entitled to double the costs provided for in subrule (2), excluding disbursements, if (

a) subrule (2) applies, and (

b) the action or claim that is the subject of the formal offer to settle is dismissed.

(4) This rule does not apply (

a) if costs are awarded under rule 10.31(1)(b) [Court-ordered costs award] , (

b) in the case of a formal offer to settle made with respect to an application for judgment after a

summary trial, if the offer is made less than 10 days before the date scheduled to hear the application for judgment, (

c) in the case of a formal offer to settle made with respect to any other matter, if the offer is made less than 10 days before the date scheduled for the trial to start, (

d) in the case of a formal offer to settle that is withdrawn in accordance with rule 4.24(4) [Formal offers to settle] , or (

e) if in special circumstances the Court orders that this rule is not to apply . [Underlining Added] Issue 2 – Double Costs Analysis [ 4 ] The Plaintiffs argue that the “special circumstances” provisions of Rule 4.29(4) apply because the formal offer was not a “genuine” offer to compromise. [ 5 ] In that regard Allen (Next Friend of) v Muellor, 2006 ABCA 101 at paragraphs 14-17 provides the applicable test: 14 In every case where double costs are claimed under

Part 12 on the basis of an unaccepted offer of settlement, the court must

determine if the offer was genuine. As a general rule, for an offer of settlement to qualify as a genuine offer it must have been one thatwas reasonable and realistic in all the circumstances current at the time it was served and remained open . Characterization of a disputeas "all or nothing" is irrelevant to a consideration of whether the compromise rules apply. This Court pointed out in Budget Rent-A-Carof Edmonton Ltd. v. Security National Insurance Co., 2001 ABCA 71 , [2001] A.J.

No. 321 at para. 8, that the issue on appealis often "all or nothing", but that alone does not constitute a "special reason" for excluding application of the compromise rules: By the time cases reach the appeal stage there is often only one major issue to be decided. The fact that the outcome of an appeal is an"all-or-nothing" proposition does not constitute a special circumstance which negates the double costs rule. ....

The nature of the issue or issues in dispute may, however, be one of the circumstances relevant to the question of whether an offer isgenuine. 15 To be genuine, an offer of settlement made pursuant to

Part 12 must include an element of compromise: Re Blue Range ResourcesCorp. (2000), 281 A.R. 351 (C.A.), 2001 ABCA 177 at para. 1. An offer to settle for the full amount of a liquidated claim plus judgmentinterest and costs to the date of service of the offer cannot be characterized as a genuine offer as it lacks an element of compromise:Labbee v. Peters, supra. Likewise, an offer to accept the full amount of a trial judgment plus interest and costs to the date of service isnot a genuine offer to compromise an appeal: Blue Range, supra at paras. 11 and 13.

The addition of an offer to forego costs that may beincurred after service of the offer does not introduce an element of compromise. Where a settlement offer does not contain an element ofcompromise, the court may nevertheless consider it to have been reasonable in the circumstances and exercise its discretion to awardenhanced costs. 16 An offer of settlement that does not realistically reflect the relative merit of the parties' positions at the time it is made is not agenuine offer.

It is one made without any reasonable expectation that it will be accepted and for the sole purpose of invoking the doublecosts sanction: Kerr v. Kerr (2000), 293 A.R. 384 (C.A.), 2001 ABCA 152.

Such an offers is merely a no-risk litigation strategy or tactic.If such an offer were held to justify a double costs penalty if not accepted, a litigant with a bona fide perception of the facts or the law, orboth, different than that of his adversary could only pursue the matter to trial or appeal at an unjustifiable financial risk, thus potentiallyimpeding the access of deserving litigants to the courts and aggravating the inherent advantage enjoyed by litigants with the deepestpockets. 17 The assessment of an offer's genuineness is not confined to a consideration of whether it was made honestly and in good faith.

Thefact it contains an element of compromise, although necessary and relevant, may not be determinative. The genuineness of an offer mustbe assessed as at the time it was served and remained open and its character cannot be decided by simply comparing it to the result of thetrial or appeal. That is only one factor to be considered.

Other factors that may be relevant include the amount or nature of the settlementoffer relative to the relief claimed or the judgment at trial, the relationship of the proposed settlement to an objective view of the relativemerit of the positions of the parties, and the timing of the offer in relation to the commencement of the trial or hearing of the appeal.None of these factors, or any other single factor, is necessarily conclusive.

An assessment of whether an offer was or was not genuinerequires an examination of all of the surrounding circumstances, subjective and objective, existing at the time the offer was served andremained open, as well as the outcome of the trial or appeal. [6] While the Plaintiffs concede that an offer to forgo costs early in the litigation process may constitute a genuine offer ofcompromise if the costs are significant, by the time the WCB offer was made in this case, their expired offer was to settle a $1.25 millionlawsuit for $1,000 savings in costs.

Accordingly it is submitted by the Plaintiffs that the WCB offer was so nominal and made so early inthe litigation process, that it did not reflect the relative merit in the positions of the parties.

The offer furthermore was so unrealistic andso unreasonable that there could have been no reasonable expectation that it would have been accepted by the Plaintiffs. [7] As stated in Allen for an offer to qualify as “genuine”: a. it must have been one that was reasonable and realistic in all of the circumstances current at the time it was served andremained open (paragraph 14); b. the offer of settlement must include an element of compromise (paragraph 15); c. the offer of settlement must be a realistic reflection of the relative merits of the parties’ position at the time it is made(paragraph 16); and d. the assessment of an offer is genuineness requires an examination of all the surrounding circumstances existing at the timethat the offer was served and remained open, as well as the outcome of the trial; and is not to be determined necessarily on any singlefactor (paragraph 17). [8] I conclude that the onus is on the opposing party to demonstrate a lack of genuineness.

In Phillips v Nagy 2007 ABCA 58Nagy received double costs from our Court of Appeal after arguing at paragraph 4: 4 Nagy now seeks double costs of all steps taken following service of the Offer. She states that she bettered her Offer, as she is nowentitled to the full judgment amount plus interest, including post-judgment interest that has accrued since the date of the Offer (estimatedat more than $12,000) plus additional costs resulting from successfully defending the appeal.

Nagy submits that once a partydemonstrates that he or she obtained a judgment that is better than their Offer, the onus passes to the opposing party to demonstrate thatthe offer was not genuine and the double costs provisions of Rule 174 should not apply. (

a) The Element of Compromise [9] The WCB points out that at the time that the Formal Offer was made the fee portion of WCB’s taxable costs on a column 4basis was $7,500.00. WCB’s taxable costs on a column 3 basis would have been $6,000.00 at the same point in time, leaving a difference

of $1,500.00. While the WCB concedes that $1,500.00 appears to be a modest amount, the overall costs that WCB are entitled are similarly modest. That difference ($1,500.00) amounts to 20% of the taxable costs that WCB would have been entitled to at the time that the Formal offer was made and was open for acceptance. [ 10 ] Furthermore the WCB advises that the total fee portion under Column 4 without any double costs would be $12,875.00 (excluding any costs that may be awarded for these costs and stay applications). The difference between Column 3 and 4, $1,500.00, amounts to 11.6% of the total $12,875.00.

The WCB’s total fee portion under Column 4 with double costs would be $18,250 (excluding any costs that may be awarded for these costs and stay applications). The difference between Column 3 and 4 still amounts to a total of 82% of the total $18,250. [ 11 ] In conclusion on this issue of the necessary element of compromise, I agree with the submissions of the WCB that at the time a formal offer was made and was open for acceptance significant steps in the action had already occurred and the WCB was entitled to nontrivial costs.

The WCB’s offer to give up approximately 20% of the taxable fees that it was ultimately adjudged entitled to is sufficient to establish the element of compromise. (

b) Merits of the Parties’ Positions at the Time of the Formal Offer [ 12 ] The Plaintiffs argue that the proceedings were at far too early a stage in the litigation process at the time the formal WCB offer was made, and did not reflect the relative merits of that parties’ position. However I conclude that by the time the formal WCB offer was made the relevant facts and evidence of the case were sufficiently clear.

Most of the 46 Plaintiffs had already sworn Affidavits setting out the facts relative to their claims against the Defendants; all document production had occurred; and the Plaintiffs had cross- examined the WCB’s corporate representative on his Affidavit regarding the WCB’s acts and omissions relevant to the vicarious liability claim. [ 13 ] I agree with the WCB that at the time the formal offer was served, all that remained was to apply the legal tests and authorities to the undisputed facts of the case. This is what I did when I issued my July 31, 2014 Reasons.

I agree with the WCB position that nothing changed materially between the date the formal offer was served on August 8 th , 2013, and the date of this Court’s

Summary Dismissal July 31 st , 2014 Decision to alter the merits of the parties’ respective positions. [ 14 ] I conclude that at the time of the WCB’s formal offer that it was a realistic reflection of the relative merits of the parties’ position at the time of the formal offer, it included the necessary element of compromise, and accordingly the formal offer was genuine. Therefore the WCB is entitled to double costs after the date of the formal offer.

Issue 3 – Is there Joint and Several Liability for Costs [ 15 ] Rule 10.31 and 10.33 of the Alberta Rules of Court are the applicable rules in this regard and they read as follows: 10.31(1) After considering the matters described in rule 10.33 [Court considerations in making a costs award] , the Court may order one party to pay to another party, as a costs award, one or a combination of the following: (

a) the reasonable and proper costs that a party incurred to file an application, to take proceedings or to carry on an action, or that a party incurred to participate in an application, proceeding or action, or (

b) any amount that the Court considers to be appropriate in the circumstances, including, without limitation, (

i) an indemnity to a party for that party’s lawyer’s charges, or (ii) a lump sum instead of or in addition to assessed costs. ( 2) Reasonable and proper costs under subrule (1)(a) (

a) include the reasonable and proper costs that a party incurred to bring an action; (

b) unless the Court otherwise orders, include costs incurred by a party (

i) in an assessment of costs before the Court, or (ii) in an assessment of costs before an assessment officer; (

c) do not include costs related to a dispute resolution process described in rule 4.16 [Dispute resolution processes] or a judicial dispute resolution process under an arrangement described in rule 4.18 [Judicial dispute resolution arrangement] unless a party engages in serious misconduct in the course of the dispute resolution process or judicial dispute resolution process; (

d) do not include, unless the Court otherwise orders, the fees and other charges of an expert for an investigation or inquiry or the fees and other charges of an expert for assisting in the conduct of a

summary trial or a trial.

(3) In making a costs award under subrule (1)(a), the Court may order any one or more of the following: (

a) one party to pay to another all or part of the reasonable and proper costs with or without reference to

Schedule C [Tariff of

Recoverable Fees] ; (

b) one party to pay to another an amount equal to a multiple, proportion or fraction of an amount set out in any column of the tariff in Division 2 of

Schedule C [Tariff of Recoverable Fees] or an amount based on one column of the tariff, and to pay to another party or parties an amount based on amounts set out in the same or another column; (

c) one party to pay to another party all or part of the reasonable and proper costs with respect to a particular issue, application or proceeding or part of an action; (

d) one party to pay to another a percentage of assessed costs, or assessed costs up to or from a particular point in an action.

(4) The Court may adjust the amount payable by way of deduction or set-off if the party that is liable to pay a costs award is also entitled to receive an amount under a costs award.

(5) In appropriate circumstances, the Court may order, in a costs award, payment to a self-represented litigant of an amount or part of an amount equivalent to the fees specified in

Schedule C [Tariff of Recoverable Fees] .

(6) The Court’s discretion under this rule is subject to any specific requirement of these rules about who is to pay costs and what costs are to be paid. ... 10.33(1) In making a costs award, the Court may consider all or any of the following: (

a) the result of the action and the degree of success of each party; (

b) the amount claimed and the amount recovered; (

c) the importance of the issues; (

d) the complexity of the action; (

e) the apportionment of liability; (

f) the conduct of a party that tended to shorten the action; (

g) any other matter related to the question of reasonable and proper costs that the Court considers appropriate.

(2) In deciding whether to impose, deny or vary an amount in a costs award, the Court may consider all or any of the following: (

a) the conduct of a party that was unnecessary or that unnecessarily lengthened or delayed the action or any stage or step of the action; (

b) a party’s denial of or refusal to admit anything that should have been admitted; (

c) whether a party started separate actions for claims that should have been filed in one action or whether a party unnecessarily separated that party’s defence from that of another party; (

d) whether any application, proceeding or step in an action was unnecessary, improper or a mistake; (

e) an irregularity in a commencement document, pleading, affidavit, notice, prescribed form or document; (

f) a contravention of or non-compliance with these rules or an order; (

g) whether a party has engaged in misconduct. [ 16 ] Both sides agree that these rules confirm the Court’s broad discretion with respect to cost awards generally. [ 17 ] The Plaintiffs point out that their pooling of resources for the purposes of large scale litigation engage special cost considerations including Rule 10.32 which reads as follows: 10.32 In a proceeding under the Class Proceedings Act or in a representative action, the Court, in determining whether a costs award should be made against the unsuccessful representative party, may take into account one or more of the following factors, in addition to any other factors the Court considers appropriate: (

a) the public interest; (

b) whether the action involved a novel point of law; (

c) whether the proceeding or action was a test case; (

d) access to justice considerations. [ 18 ] The Plaintiffs also rely on Pauli v ACE INA Insurance , 2004 ABCA 253 at paragraphs 31 , 33 and 34 which read as follows: 31 Class actions are relatively new in Canada, and it is arguable that such actions increase access to justice by allowing many claimants to pool their resources to pursue claims together that they could not pursue individually because of small monetary amounts at

stake. But the reality is that large cost awards against unsuccessful plaintiffs will have a chilling effect and likely discourage meritorious class actions: Craig Jones, Theory of Class Actions, Irwin Law Inc., 2003 at p. 150. These arguments are reviewed in Final Report No. 85, Class Actions, at pp. 147-154, Alberta Law Reform Institute, December, 2000.

In exercising the court's discretion to award costs, there needs to be a balance between encouraging class actions that have potential merit and discouraging those that may be frivolous or vexatious. ... 33 The chambers judge considered the access to justice issue only in respect of the financial circumstances of the appellants, concluding that because funding was available their access to justice was not compromised. However, access to justice must be viewed in the broader context of the effect of a costs award against citizens who seek to resolve matters affecting society generally.

In this case, the chambers judge awarded costs, estimated to be $115,000.00 to $125,000.00, jointly and severally against the appellants, none of whom, individually, would stand to gain more than $1,000.00 compensatory damages in the event of success. 34 Such an award curtails access to justice because it has a chilling affect on future potential litigants. Lawyers and other third parties, who might be willing to underwrite the costs of a potentially meritorious representative action, would be unwilling to do so if they knew they would face crippling costs merely because they offered this financial assistance.

Individual litigants, whose stake in the litigation is relatively small, would then be unwilling to pursue the action. [ 19 ] The Plaintiffs submit that they pooled their resources to enable them to recover losses they suffered individually as victims of the WCB’s employee fraud, and that consolidating the individual claims into one action provided an efficient and economic use of the resources of all the parties, including the Court and the WCB.

The Plaintiffs argue that if the individual Plaintiffs become liable for all the costs owing to the WCB, this could have a chilling effect on access to justice by discouraging future potential litigants.

Accordingly they seek a pro-rata apportionment of costs that essentially by my calculation would see the individual Plaintiffs being responsible from anywhere between and approximately 1% to 10% of the total costs, with an average percentage of responsibility for each individual Plaintiff at around 2%. [ 20 ] The WCB argues that Courts in Alberta and elsewhere have been clear that the general rule is that unsuccessful Plaintiffs are jointly and severally liable for costs to the successful Defendant. [ 21 ] I agree with my former colleague Wilson, J’s view on this issue as he described in Zubick v Alberta Teachers’ Association 2008 ABQB 241 at paragraphs 19 to 23 : 19 The Onstream Natural Gas Management Inc. case states the principle that the Defendant relies upon in seeking joint and several liability against the Plaintiffs.

The Alberta decisions agree and follow the reasoning of that case. I agree with this line of authority and intend to follow it here. 20 It is clear law that in Alberta, all matters of costs including the determination of joint and several liability of the Plaintiffs, are in the discretion of the Court.

The earlier decisions in Alberta and other jurisdictions may be considered and found persuasive, but ultimately they are not binding on this Court in the exercise of discretion. 21 In the absence of reasons to order that cost liability should be several, the general rule is that plaintiffs should be jointly and severally liable, and this has been applied in many Alberta decisions, including the ones mentioned above. 22 The reasoning of Shaw, J. in the On-Stream case is useful and well put.

He said: I think the first point to consider is whether the Plaintiffs in bringing this action acted jointly against the bank. In my view they did. They clearly supported each other in the venture to the court action. The counsel retained acted for all of them. The goal of imposing liability on the bank was common to all of the Plaintiffs.

It follows, in my view that any liability that may be imposed upon the Plaintiffs for costs should be joint and several liability, unless there is a reason why the Court, exercising its discretion, should order otherwise. (para. 17) 23 The decision to order otherwise must be exercised judicially. Before Shaw, J. it was urged for some of the Plaintiffs that there was an unfairness of some of the plaintiffs bearing more than their "share" of the costs.

He said: I do not think that the bank, having won the action, should be obliged to undertake proceedings against 92 separate parties, each for a minor portion of the costs. The trouble and the risk should, in my view rest with the Plaintiffs who acted jointly and lost the action. They had to organize when they commenced the action. In doing so, they will have had the opportunity to address the risk of what lay ahead and to provide for the contingency of losing.

So between themselves they have at law rights of contribution from each other which can, if exercised, reduce the financial outlay of any plaintiff who may be called upon by the bank to pay or all of its costs.

When I consider whether the burden of enforcing contribution by each individual plaintiff should rest upon the bank or upon the plaintiffs, I conclude that the plaintiffs as the losing parties should bear the burden. (para. 23) [ 22 ] The British Columbia Court of Appeal in Giles v Westminster Savings Credit Union, 2010 BCCA 282 is similar to my present matter, and I also find it persuasive at paragraph 92 to 96: 92 All parties accept that in multi-party litigation such as this, the "usual rule" is that unsuccessful plaintiffs will be liable for costs on a joint and several basis.

Accordingly, the question here is whether the trial judge properly exercised his discretion to depart from that rule on the basis that the circumstances of this case are "unique": see para. 32 above. 93 I do not see how this case unfolded as affording a principled reason for departing from the usual rule.

While it is true, as the trial judge noted, that the possible costs consequences of a dismissal of the claims of the ten plaintiffs who proceeded to trial were not specifically mentioned in the discussions relating to the decision to proceed in that fashion, and the overall costs are substantial, the fact remains that the plaintiffs as a whole, through their litigation committee, chose to proceed as they did. They must be taken to know (or to

have been so advised by their counsel) that in the event their claims were dismissed they would be liable for costs and that that liability would, in all likelihood, be on a joint and several basis. Indeed, the trial judge, in his November 14, 2002 reasons staying the proposed class action and permitting the multi-party action to proceed, said this at para. 42: It was suggested that the investors joining the Giles Action may not be fully informed of all relevant information including their joint and several obligation to pay costs if unsuccessful . I am satisfied that the selection of Mr.

Laxton as the lawyer for the Giles Action plaintiffs was, according to the evidence, a well considered decision made by an experienced committee of investors spearheaded by Ms. Giles. [Emphasis added.] And at para. 47: In terms of costs, it appears that Mr. Laxton's clients are aware of their personal exposure and nevertheless prefer to approach this claim as a collection of individual plaintiffs rather than seeking the protection from costs that the Class Proceedings Act might afford. Mr.

Lemer says that the Giles plaintiffs have not been fully advised of their joint and several liability, but the evidence shows that Mr. Laxton has expertise in multi-party claims and that the desire of the substantial percentage of the plaintiffs to have him act as their counsel is not unjustified. It is of course his obligation to ensure that his clients are informed. [Emphasis added.] 94 One of the purposes of party and party costs is to partially indemnify successful litigants: Nazmdeh v. Spraggs , 2010 BCCA 131 at para. 41 .

This is particularly so with respect to successful defendants who are drawn into the litigation process and required to respond to claims brought against them. After those claims have been dismissed, such defendants should be able to recover the costs awarded to them as effectively, efficiently, and economically as possible. In particular, they should not have to incur additional non-recoverable expenses to obtain that already awarded to them.

While there may be circumstances in which it would be fair and reasonable to impose other than the usual joint and several costs liability on plaintiffs who come together to bring a multi-party action, this is not such a case. 95 The trial judge expressed concern that, given the total costs payable, a joint and several order might be onerous. I take this to mean he was concerned that, in the event that the Credit Union and Mr.

Thomas were required to take action to recover their costs, they would likely focus their collection efforts on only a few plaintiffs, being those with sufficient assets to satisfy the total amount owing. This would result in those few having to shoulder the entire costs burden, subject to their right to seek contribution from the others. Assuming this to be so -- there was no evidence as to the respective financial positions of the plaintiffs -- I do not consider it a valid reason for departure from the usual rule.

If the plaintiffs as a whole do not voluntarily satisfy their collective costs obligations, then there is nothing unfair or unjust in giving the Credit Union and Mr. Thomas the ability to decide how to best attempt to collect what is owing to them. After all, it was the plaintiffs who collectively caused them to incur those costs. If there is a problem in making the Credit Union and Mr. Thomas whole with respect to costs, then that problem should, to the extent possible, rest with the plaintiffs. 96 The correct approach in circumstances such as exist here is that set out in King v.

On-Stream Natural Gas Management Inc. (1993), 21 C.P.C. (3d) 16 (B.C.S.C.) . In that case, a multi-party action brought by 92 plaintiffs against the Bank of Montreal was dismissed and the plaintiffs sought an order limiting their individual liability to 1/92 of the total costs awarded. Mr. Justice Shaw rejected that submission and ordered that the plaintiffs be liable on a joint and several basis. I respectfully adopt the following from his reasons: 18 I think the first point to consider is whether the plaintiffs in bringing this action acted jointly against the bank. In my view they did.

They clearly supported each other in the venture of the court action. The counsel they retained acted for all of them. The goal of imposing liability on the bank was common to all the plaintiffs. It follows, in my view, that any liability that may be imposed upon the plaintiffs for costs should be joint and several liability, unless there is reason why the court, in the exercise of its discretion, should order otherwise. ... 21 In the case before me the "event" was won by the bank and lost by the 92 plaintiffs.

As I said above, I think it follows from the fact that the plaintiffs acted jointly against the bank, that the plaintiffs are each jointly and severally liable for the bank's costs, unless this court orders otherwise. The discretion to order otherwise must, of course, be exercised judicially. ... 24 I agree with the bank's position. I do not think that the bank, having won the action, should be obliged to undertake proceedings against 92 separate parties, each for a minor portion of the costs. The trouble and the risk should, in my view, rest with the plaintiffs who acted jointly and lost the action.

They had to organize themselves when they commenced the action. In doing so, they will have had the opportunity to address the risk of what lay ahead and to provide for the contingency of losing. As between themselves they have at law rights of contribution from each other which can, if exercised, reduce the financial outlay of any plaintiff who may be called upon by the bank to pay some or all of its costs.

When I consider whether the burden of enforcing contribution by each individual plaintiff should rest upon the bank or upon the plaintiffs, I conclude that the plaintiffs as the losing parties should bear the burden. [Emphasis added.] [ 23 ] As such, I find that there is no basis to depart from the general rule that unsuccessful Plaintiffs should pay their costs on a joint and several basis. I agree that the WCB having won the action should not be obligated to undertake proceedings against 46 separate parties, each for a minor portion of the costs. This trouble and the risk would be unreasonable.

The trouble and risk should rest with the Plaintiffs who acted jointly, lost the action, and who now all appeal together. Issue 4 – Should there be a Stay Pending Appeal

[24] Rule 1.4(2)(h), and Rule 14.48 are the applicable rules: 1.4(2) Without limiting subrule (1), and in addition to any specific authority the Court has under these rules, the Court may, unlessspecifically limited by these rules, do one or more of the following: ... (

h) adjourn or stay all or any part of an action, application or proceeding, extend the time for doing anything in the proceeding, or staythe effect of a judgment or order; ... 14.48 An application to stay proceedings or enforcement of a decision pending appeal may be made (

a) to the judge who made that decision, or (

b) to a single appeal judge, whether or not the application was made to the judge who made the decision, and whether or not thatapplication was granted or dismissed. [25] Both parties agree that the tripartite test for determining whether to grant a stay of judgment is from RJR-MacDonald Inc. vCanada (SCC), 1994 1 SCR 311: a. Is there a serious issue to be tried? b. Would the Plaintiffs suffer irreparable harm? c. On a balance of convenience, if the stay is refused, will the Plaintiffs suffer greater harm than the Defendants would sufferif the stay were granted. (

a) Serious Issue to be Appealed [26] Both parties agree that the threshold of whether there is a serious appeal to be tried is low, although the WCB submits thatthis low threshold is not even met in this case. The WCB submits that while the Plaintiffs’ appeal is not vexatious, it is frivolous andwithout any truly arguable ground of appeal since this is such a clear case of no vicarious liability. [27] The Plaintiff’s argue that this appeal does raise a serious issue, in particular because of the new test for

Summary Judgmentthat was applied in dismissing the Plaintiffs’ claim against the WCB. [28] I conclude that the Plaintiffs’ appeal is not vexatious or frivolous, and that is sufficient to meet the low threshold test of aserious appeal to be tried. (

b) Irreparable Harm [29] The Plaintiffs submit that the second and third parts of the tripartite test for a stay are linked and must be considered together.They argue that with respect to monetary judgments, the determining question boils down to who between the parties should have themoney pending the appeal, and what risk is there that the ultimate payment will not be made. [30] In this regard a stay of the dismissal of their action according to the Plaintiffs allows them to determine the serious issuepresented in this appeal, and weighs in favour of the stay.

The Plaintiffs it is argued have suffered significant financial burden as a resultof a Ponzi scheme, such that the financial burden of having to pay the WCB costs before the outcome of the appeal raises major access tojustice issues preventing all the Plaintiffs from pursuing their claims further. The Plaintiffs submit they live and work in Alberta and aremaking good faith efforts to secure funds to pay the WCB costs, therefore there is little risk that the WCB will not recover the costs uponthe successful resolution of the appeal.

In the meantime without a stay, the payment of costs could prevent some of the Plaintiffs fromhaving their much deserved day in Court. [31] “Irreparable harm” according to RJR-MacDonald Inc. v Canada at paragraph 64 refers to the nature of the harm sufferedrather than its magnitude. It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because oneparty cannot collect damages from the other.

Generally speaking the jurisprudence indicates that the ability of the Respondent to repaythe money awarded if the judgment is overturned on appeal is the primary consideration as to whether to grant a stay.

In this regard thereis no doubt that the WCB would have the financial capability to repay costs of approximately $20,000. [32] With respect to the Plaintiffs’ evidence and argument that the Ponzi scheme contributed to the impoverishment of thePlaintiffs, and that the financial burden may prevent some of the Plaintiffs from pursuing their appeal, I conclude that the Plaintiffs’evidence is not sufficient to establish irreparable harm. The Affidavit of Ms.

Biasbas in support of the stay sworn September 24, 2014 atparagraphs 11 and 14 states that the Plaintiffs are aware of their costs obligation to the WCB and they are taking bona fide steps tocollect funds to pay the costs award. I agree with the WCB that this indicates that the financial burden “may” but not necessarily “will”,prevent the Plaintiffs from continuing on in their appeal.

Further it is arguable that the cost of prosecuting their own claims and appeal,and not the payment of the WCB costs, is what will prevent their continuation of their appeal. [33] I conclude that the Plaintiffs have not proven the necessary irreparable harm to obtain a stay of this monetary costs award.

Balance of Convenience [ 34 ] The balance of convenience test requires an analysis of which party would suffer the greater harm if the stay is granted or refused. The Plaintiffs assert that some of the Plaintiffs may not be able to continue with the appeal because of the financial burden.

However I conclude that the evidence before me on this point is tenuous, as previously discussed. [ 35 ] Conversely I agree with the WCB that they are being forced to respond to what is likely a weak appeal, and to incur significant actual costs that will never be fully recovered from the Plaintiffs, given the limited amount of taxable costs that can be recoverable.

Furthermore I agree with the WCB that the Plaintiff’s situation is such that considerable monies will be expended in their prosecution of the appeal which could result in the WCB not being unable to collect either trial or appeal level costs from impecunious Plaintiffs. [ 36 ] Accordingly I conclude that the balance of convenience favors the WCB.

Disposition [ 37 ] I conclude that: a. the WCB is entitled to double costs from the date of the formal offer; b. the Plaintiffs are jointly and severally liable for the full costs awarded to the WCB; and c. the Plaintiffs’ application for a stay pending appeal of the costs award is dismissed with costs. Heard on the 09 th day of October, 2014. Dated at the City of Edmonton, Alberta this 24 th day of October, 2014. Donald Lee J.C.Q.B.A. Appearances: Randolph Langley Henning Byrne LLP for the Plaintiffs Brian W. Summers and Ryan F.T. Quinlan Dentons Canada LLP for the Defendant Workers' Compensation Board