Horst Tyson Dahlem Professional Corporation v John F Schneider Professional Corporation (Canmore Legal Services), 2016 ABQB 173

Court of Queen ’ s Bench of Alberta Citation: Horst Tyson Dahlem Professional Corporation v John F Schneider Professional Corporation (Canmore Legal Services), 2016 ABQB 173 Date: 20160323 Docket: 0601 07392 Registry: Calgary Between: Horst Tyson Dahlem Professional Corporation Plaintiff - and - John F. Schneider Professional Corporation operating as Canmore Legal Services and John F. Schneider Defendants _______________________________________________________ Memorandum of Decision re Costs of the Honourable Mr. Justice G.C.

Hawco _______________________________________________________ [ 1 ] On February 12, 2016 I gave a decision in favor of the Plaintiff with respect to a claim for monies due and owing under an employment agreement entered into between the parties. I found that the Plaintiff had a legitimate claim for the full amount that he was seeking plus interest. I found that the Defendant, Mr. Schneider, had not satisfied me that he had any legitimate claim whatsoever against the Plaintiff and therefore dismissed his counterclaim.

[2] Mr. Schneider had filed two notices to admit certain facts, which I found to be inappropriate. I further found that Mr.Schneider was personally liable. [3] At the conclusion of my decision I awarded costs against the Defendant. [4] The Plaintiff has returned seeking costs on a solicitor-client basis. Both parties have submitted briefs. [5] As I noted in my decision, this matter has been dragging on for years. Mr. Schneider acknowledged the debt to the Plaintiffas far back as May of 2006. Notwithstanding this, he has spent almost 10 years battling this claim at every step, including launching acounterclaim without any legitimate case against the Plaintiff, bringing an application for

summary judgment, which was unsuccessful,and filing an appeal against that. [6] He further tried to delay the trial itself by attempting to file late affidavits of production, which I did not allow. [7] This simple action on a debt owed – and admitted, has cost the Plaintiff more than the judgment which he received from thisCourt. [8] In Jackson v Trimac Industries, (AB KB), 1993 CarswellAlta 310, Justice Hutchinson distinguishedbetween costs on the solicitor-client basis and costs on a solicitor and his own client, which are more equivalent to a completeindemnity.

In that case, Justice Hutchinson awarded costs on an indemnification basis, or, on solicitor and his own client basis, havingconcluded that his case fit within the parameters of a rare and exceptional or unusual case due to the conduct of the defendant seniorexecutive, which Justice Hutchinson found was calculated to deliberately harm the other party. [9] In this case I am not satisfied that Mr. Schneider’s conduct goes quite that far.

I do find that, as did Hutchinson, J in Jacksonthat here the Defendant “did something to hinder, delay or confuse the litigation, where there was no serious issue of fact or law whichrequired these lengthy, expensive proceedings”. What Mr. Schneider has done throughout this matter is to force the Plaintiff to exhaustlegal proceedings to obtain what was obviously his. [10] The Plaintiff is entitled to his costs on a solicitor-and-client basis, which will require the Plaintiff to have his counsel’saccounts forwarded to me. I may not allow all of the fees sought.

The time spent and the hourly rate charged will have to be justified. [11] The Defendants have no right to comment or dispute the accounts. At the conclusion of my examining the Plaintiff’s costs Iwill order costs in whatever amount I determine is appropriate. Heard on the 8th day of February, 2016 to the 11th day of February, 2016. Dated at the City of Calgary, Alberta this 23rd day of March, 2016. G.C. Hawco J.C.Q.B.A. Appearances: M.A. Amery for the Plaintiff John F. Schneider Self represented for the Defendants