ET v Rocky Mountain Play Therapy Institute Inc, 2016 ABQB 299

Court of Queen ’ s Bench of Alberta Citation: ET v Rocky Mountain Play Therapy Institute Inc, 2016 ABQB 299 Date: 20160520 Docket: 1201 07908 Registry: Calgary Between: E.T. Plaintiff - and - Rocky Mountain Play Therapy Institute Inc. and Ken Kwan Defendants - and - I.T. Third Party Editorial Notice: The filed date has been updated to reflect May 20, 2016. _______ ________________________________________________ Memorandum of Decision as to Costs of the Honourable Madam Justice J. Strekaf

_______________________________________________________ [1] This decision addresses costs arising out of my written decision delivered on February 19, 2016 (2016 ABQB 108)dismissing an appeal by E.T. from a decision of a Master dated June 22, 2015. In my decision I advised that if the parties were unable toagree on how costs should be addressed, each party was at liberty to provide written submissions within 30 days. I received writtensubmissions from Mr. Kwan’s counsel and from E.T., who is self-represented, which I have reviewed. Mr. Kwan’s counsel provided an18 page brief and 16 authorities.

E.T. requested additional time to respond to the submissions provided by Mr. Kwan’s counsel. E.T. wasadvised, through my assistant, that he could submit same by March 29, 2016. E.T. provided further materials, including a letter to me, a36 page submission and a binder containing 15 attachments. [2] E.T. also requested that he be given approximately two hours to present additional oral submissions, including the evidencecontained in the binder.

Having reviewed the lengthy materials already provided, I am of the view that no further evidence orsubmissions are needed for me to address the issue of costs on the appeal and on the application before the Master. [3] Mr. Kwan is seeking costs on a solicitor-and-client basis in an unidentified amount or, in the alternative, five times column 3costs for the application before the Master and on the appeal in the amount of $30,000. [4] E.T. seeks to have Mr.

Kwan’s costs claim dismissed or, in the alternative, to have the costs decisions deferred until aftertrial. [5] Costs are a matter for the Court’s discretion as outlined in Rules 10.29 and 10.31, having regard to the matters set out in Rule10.33, which include: • The result and degree of success of each party; • The amount claimed; • The importance of the issues; • The complexity of the action; • The conduct of a party that shortened or lengthened a proceeding; • A party’s denial of or refusal to admit anything that should have been admitted; • Whether any application, proceeding or step in an action was unnecessary; • Irregularities in any documents or other failure to comply with the rules or an order of the Court; • Whether a party engaged in misconduct; and • Other matters the Court considers appropriate. [6] Solicitor-and-client costs are only awarded in exceptional circumstances where there has been reprehensible, scandalous oroutrageous conduct on the part of one of the parties: Young v Young, (SCC), [1993] 4 SCR 3 at para 260.

Mr. Kwansubmits that they should be awarded in this case given the serious nature of the allegations made before the Master and on this appealregarding the conduct of E.T.’s ex-wife, Mr. Kwan and counsel that were not established. The Brief filed by E.T.’s counsel in theproceedings before the Master alleges: perjury and child abuse by E.T.’s ex-wife; perjury, fraud, forgery and child abuse by Mr. Kwan;conspiracy, criminal conduct and child abuse by Mr. Kwan’s counsel and counsel for the Calgary Catholic School Board; allegations thatMr.

Kwan and his counsel were trying to bankrupt E.T., had launched a speculative fishing expedition and brought applications in badfaith that were disingenuous and improper.

E.T.’s Brief on appeal also alleged fraud, forgery, child abuse, perjury, criminal conduct,abuse of process, breach of privacy, misleading the court, contempt of court, collusion and bias on the part of the Master. [7] E.T.’s costs submissions largely constitute an attempt to re-argue the appeal and continue to allege child abuse,criminal/illegal conduct, bias, perjury and defamation. [8] Many of the allegations made by E.T. were highly inflammatory, not relevant to the issues before the Master or on the appealand were not established on the evidence.

However, I am not satisfied that solicitor-and-client costs should be awarded at this stage ofthe proceedings since that determination is more appropriately made at trial. However, to the extent that solicitor-and-client costsrelating to the application before the Master and the appeal are greater than the costs awarded by me, any claims which Mr.

Kwan maywish to advance with respect to that difference is a matter that is left to be dealt with by the trial judge. [9] Enhanced costs may be awarded where unproven allegations of serious impropriety are advanced unsuccessfully: Buchananv Lamoureux, 2011 ABQB 256; Waste Management of Canada Corp v Thorhild (County) No 7, 2009 ABQB 157. I am satisfied thatenhanced costs are appropriate in this case given the serious unfounded allegations that were made by E.T. about Mr. Kwan, E.T.’s ex-wife and legal counsel, both before the Master and on the appeal. [10] Mr.

Kwan is awarded costs in the global amount of $18,000 (including disbursements and other charges), which reflects threetimes the taxable costs of the application before the Master and on the appeal.

Dated at the City of Calgary, Alberta this 20 th day of May, 2016. J. Strekaf J.C.Q.B.A. Appearances: E.T., Self-Represented for the Plaintiff Domenic S. Venturo, Q.C. and Michelle I. Commance Scott Venturo LLP for the Defendant, Ken Kwan