Holowaychuk v Makowichuk, 2016 ABQB 17

Court of Queen ’ s Bench of Alberta Citation: Holowaychuk v Makowichuk, 2016 ABQB 17 Date: 20160107 Docket: 1203 05939 Registry: Edmonton Between: Steve Holowaychuk Plaintiff - and - Bobby Michael Makowichuk Defendant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice B.R. Burrows _______________________________________________________ [ 1 ] On December 3, 2015, I issued Reasons for Judgment following the trial of this action. I granted Mr. Holowaychuk judgment for $32,000 against Mr. Makowichuk.

I invited counsel to address costs if they were not able to agree. Counsel have submitted written submissions concerning a costs issue which has arisen. [ 2 ] The issue is whether the Plaintiff’s costs should be reduced to 75% of

Schedule C because of Rule 10.42 (2) which provides: Despite anything in this Division or

Schedule C, unless the Court otherwise orders, (

a) in the case of an action brought in the Court of Queen’s Bench for which the amount sued for or the amount of the judgement or order does not exceed the amount for which the Provincial Court has jurisdiction under s. 9.6 of the Provincial Court Act , the costs to and

including judgment or order must be assessed, if at all, at not more than 75% of the amount specified in Column 1 of the tariff in Division 2 of

Schedule C. (

b) in the case of an action described in clause (a), post-judgement matters are to be assessed, if at all, at not more than 100% of the amount specified in Column 1 of the tariff in Division 2 of

Schedule C. [ 3 ] Mr. Makowichuk submits that this rule should apply. The amount for which the Provincial Court has jurisdiction is $50,000. The amount sued for here was less than that. [ 4 ] Mr. Holowaychuk responds that at the time this action was commenced, April 19, 2012, the amount for which the Provincial Court had jurisdiction was $25,000. The jurisdiction’s limit was raised to $50,000 in August 2014. The state of the Provincial Court jurisdiction limits at the time the action is commenced should determine whether or not the rule applies. [ 5 ] Mr. Makowichuk’s submission and Mr.

Holowaychuk’s response both omit reference to s. 9.6(3) of the Provincial Court Act , RSA 2000, c. P-31 which clearly resolves the issue in Mr. Holowaychuk’s favour. It provides: Where an amount is prescribed by the regulations for the purpose of subsection (1), [which sets out the jurisdiction of the Provincial Court] that amount applies with respect (

a) to civil claims issued, or (

b) subject to clause (a), to matters that arose, after the prescribed amount came into force. [ 6 ] Mr. Holowaychuk’s claim was issued before the prescribed limit of Provincial Court jurisdiction at $50,000 came into force. The cause of action in respect of which Mr. Holowaychuk sued arose before the Provincial Court jurisdiction increase came into force. By operation of s. 9.6(3), the Provincial Court jurisdiction limit, which has relevance to the question of whether Mr.

Holowaychuk’s cost entitlement is affected by Rule 10.42(2), is $25000 – the jurisdiction limit in force in the fall of 2011 when the cause of action arose and in 2012 when the action was commenced. The amount sued for was more than the relevant Provincial Court jurisdiction limit. Rule 10.42(2) has no application to this case. Mr. Holowaychuk’s costs should be determined without reference to it. Written Submissions Received on December 23, 2015 and January 4, 2016 . Dated at the City of Edmonton, Alberta this 7 th day of January, 2016. B.R. Burrows J.C.Q.B.A. Appearances: Craig S.

Lupul for the Plaintiff Nestor Makuch for the Defendant