Truehope Inc v Stringam, 2014 ABQB 772

Court of Queen ’ s Bench of Alberta Citation: Truehope Inc v Stringam, 2014 ABQB 772 Date: 20141212 Docket: 1306 00079 Registry: Lethbridge Between: Truehope Inc. Plaintiff - and - Autumn D. Stringam, Dana R. Stringam, Open Mind Consulting Inc., Nadia Tarazi and Micronutrient Solutions Inc. Defendants _ ________________________________________ ______________ Reasons for Order for Costs of the Honourable Mr. Justice D.K. Miller _________________________________________ ______________ [ 1 ] Truehope Inc. was the successful party in dueling

summary judgment applications. I rendered my decision on June 17, 2014 and concluded my decision with the following: If the parties cannot agree on costs they are at liberty to apply within thirty days. [ 2 ] The order confirming my decision was filed on July 30, 2014 with virtually the same wording relating to costs. Prior to the order being entered, on July 25 counsel for the Defendants, stated, with regard to the prepared Bill of Costs: “our clients disagree with

the items and amounts claimed”. [3] Truehope Inc. brought an application on October 14, 2014 for an order for costs pursuant to the written Judgment issued onJune 17. [4] The application is for double the costs under the Rules of Court because of the complexity of the matter and because ofparallel proceedings involving the parties in the State of New York. [5] Counsel for Nadia Tarazi and Micronutrient Solutions Inc., the unsuccessful parties in the June decision argue that thePlaintiff Truehope Inc. is out of time to bring the application to assess costs as thirty days has expired and this Court is functus officio.

Insupport of their position counsel for the Defendants cite the case of Morrison-Ebelher v Ebelher, 2009 ABQB 168 at paragraphs 18 to21: The principle of functus officio means that a court has no jurisdiction to reopen or amend a final decision: Doucet-Boudreau v. NovaScotia (Minister of Education), 2003 SCC 62 , [2003] 3 S.C.R. 3 at para. 77; Chandler v Alberta Association of Architects, (SCC), [1989] 2 S.C.R. 848. The rational for the principle at law is that there must be finality to proceedings to ensure procedural fairness and the integrity of thejudicial system.

The existence of the right of appeal is a crucial consideration when assessing the fairness of the rules of functus:Chandler at para. 39. “If a court could continually hear applications to vary its decisions, it would assume the function of an appellatecourt and deny litigants a stable form which to launch an appeal”. Doucet-Boudreau at para. 79. There are two general exceptions to the rule of functus officio. The first exception is where there has been a mistake in the process ofputting the judgment to paper and finalizing it.

The second exception is where there has been an error in expressing the intention of thecourt: Chandler at para. 15; Iverson v Westfair Foods Ltd. (1998), 1998 ABCA 337 , 223 A.R. 322 (C.A.) leave to appealrefused, [1998] S.C.C.A. No. 634. In deciding at what specific point a judge becomes functus, courts have looked at the distinction between judgments granted andjudgments entered.

In Condominium Plan No. 7510189 v Jones (1997), 1997 ABCA 53 , 196 A.R. 3 (C.A.) the Court definedthe general rule at para. 19: ...once an order is passed and entered or otherwise perfected in accordance with the practice of the Court, the Court which passed theorder is functus officio and cannot set aside or alter the order however wrong it may appear to be. That can only be done on appeal”. In369413 Alberta Ltd., v Pocklington, reflex, 1999 ABQB 936 , [2000] A.J.

No. 410 (Q.B.), reversed on appeal on other grounds,at para. 13, Justice Mason opined that the case law establishes that a judge is not functus officio “after granting an order or issuingreasons for judgement” and becomes functus when “the order or judgment is signed and entered”. See also Pro-Express Ltd. V Thew(1996), reflex, (AB KB), 185 A.R. 285 (Q.B.). [6] In my view, Justice E. A. Hughes correctly states the law on this issue. The terms “thirty days” means quite literally “thirtydays.” The only ambiguity in relation to this issue is when the thirty days begin.

Does it begin on June 17, 2014 the day I released myreasons or does it begin on July 30, 2014 the day the order is entered? [7] According to the correspondence exhibited to the affidavits in this application it appears that the lawyers assumed it wouldstart on the day the judgment or order is entered. That is a reasonable assumption.

However, the thirty days have long passed whenTruehope Inc. applies to this Court for a costs order in October. [8] Counsel for the Defendants point out that the only possible way this matter could be resolved in favour of the Plaintiff, is ifthe Plaintiff applied under Rule 9.14 of the Alberta Rules of Court. In my view, that would be a very elastic

interpretation of Rule 9.14and I will not open up the judgment under that Rule. [9] Counsel for the Plaintiff argues that if one takes a “permissive”

interpretation rather than a “mandatory”

interpretation it iswithin the Courts power to deal with the cost application. If the Court took the so-called “permissive” approach, however, it would makethe last paragraph of my written decision meaningless. During submissions counsel inquired as to what the Court meant by the lastparagraph.

That paragraph requires little “interpretation”. [10] My Judgment is clear and the order is clear, if the parties cannot agree on costs within thirty days they can apply to the Court.No one did apply and I am therefore functus officio and therefore unable to entertain the application of Truehope Inc. [11] Each party shall bear their own costs of this application. Heard on the 9th day of December, 2014. Dated at the City of Lethbridge, Alberta this 12th day of December, 2014.

D.K. Miller J.C.Q.B.A. Appearances: Robert G. Bisset/R. Travis Bisset, Stringam Denecky LLP for the Plaintiff Truehope Inc. Ken H. Lewis, Q.C., Torry Lewis Abells LLP for the Defendants Nadia Tarazi and Micronutrient Solutions Inc.