Feldman v Bendle Glass Co, 2016 ABQB 321

Court of Queen ’ s Bench of Alberta Citation: Feldman v Bendle Glass Co

(1975) Ltd, 2016 ABQB 321 Date: 20160610 Docket: 0603 14851 Registry: Edmonton Between: Rakhmiel Feldman and Nekhama Feldman Plaintiffs - and - Bendle Glass Co.

(1975) Ltd., Qualiglass Windows & Doors Ltd., Rehau Industries Inc., The Owners: Condominium Plan No. 832 1384 and The Owners: Condominium Plan No. 8321384 (Grandview Ridge Condominium Corporation) and Marshall Ursulak, Sole Proprietor, Operating as Renew Exteriors Defendants _______________________________________________________ Reasons in the Costs Application of the Honourable Mr. Justice Donald Lee _______________________________________________________

Introduction [ 1 ] This is a costs application arising out of an appeal from the Master’s decision to grant

summary dismissal that was heard by me on March 24 th , 2016. I rendered written reasons allowing the appeal, filed April 14 th , 2016, which are now reported at Feldman v Bendle Glass Co

(1975) Ltd , 2016 ABQB 219 . Counsel for the successful party now requests an award of costs in the amount of $1,717.89 with respect to their successful appeal, as well as a return of the costs awarded by the Master in the sum of $12,388.43. [ 2 ] Counsel for the Grandview Ridge Condominium Corporation (“Condominium Corporation”) submits that the Court should reasonably exercise its discretion not to grant costs in favour of the successful party in this matter, or in the alternative, that costs of the application before me should be “in the cause”.

The Applicable Rules of Court [ 3 ] Rule 10.31 does give the Court certain general discretion with respect to costs, and it reads 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; ...

(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. [Underlining Added] [ 4 ] In deciding whether or not to impose a cost award, the Court may consider the factors listed under Rule 10.33(1) and (2) which state as follows: 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. [Underlining Added] Argument [ 5 ] Counsel for the Condominium Corporation provides the following relevant facts to support his submission that no costs should be payable to the successful party herein, or that costs should be “in the cause”: (

a) The original solicitor on this file (no longer the solicitor of record for the Feldmans), filed an application approximately one month before the Hearing before the Master in Chambers seeking to have a

Summary Dismissal of the Condominium Corporation’s application. This application was dismissed. (

b) The Affidavit filed by Rahkmiel (Romas) Feldman admitted that mould was discovered in Unit 3 in late 2002 (Feldman Affidavit filed July 30, 2013, paragraph 7). This fact was raised by the Condominium Corporation in the application before the Master in Chambers in its Brief but no Supplemental Affidavit was filed prior to the Master’s hearing of this matter nor any application for leave to file an Amended Affidavit made. (

c) The Counsel who argued the Master Application was seeking to include as part of their argument (through their Brief) a read-in of their client’s own Examination for Discover, which the Master determined was improper.

Further Counsel attempted to rely upon Affidavits of Records that were referred to, but which were not attached by proper Affidavits. [ 6 ] It is submitted that the cumulative effect of the improper Affidavit, admissions in the cross Examination on the Affidavit, as well as the procedural and evidentiary issues of former legal counsel for Feldmans attempting to rely upon evidence not properly before the Court should not result in Feldman’s being entitled to a return of their costs that they paid in relation to the first application. [ 7 ] In the appeal before me from the Master’s decision, there was a non-compliance with the procedural requirements for Appeals, and new evidence was submitted later by the Appellants.

Rule 6.14 provides that within one month after service of the Notice of Appeal, the Appellant must file and serve a transcript of the proceedings before the Master, plus any additional evidence, and any written argument. All of these procedural steps were done well outside the deadline set by the Rule by the Appellants. [ 8 ] Before me, there was oral argument about the serving of the transcript on counsel for the Condominium Corporation. Counsel for the Condominium Corporation ordered a copy of the Master’s Decision directly from the Court Transcript Office but that is not what the Rule requires.

The Rule requires that the Appellant order and serve a transcript. The new evidence that was filed by the Feldmans was served in December of 2015, over three months after the Notice of Appeal was served. The Appellants’ written argument was filed on March 4, 2016, which is months later than what is provided for under the Rules of Court . [ 9 ] The Respondent Condominium Corporation submits that circumstances of this case are such that the Court may reasonably exercise its discretion to not grant costs in favour of the successful party in relation to this application before me.

In the alternative, it submits that the costs of this application should be in the cause, having regard to the complex issues associated with respect to the other parties involved in the litigation (Rehau Industries Inc and Qualiglass Windows and Doors Ltd). The pleading of the Feldmans raises very little as against the Condominium Corporation directly. The majority of claims of negligence and breach of contract are raised against the other Defendants.

[ 10 ] Furthermore the Condominium Corporation submits that the thrown away costs the Master ordered should not be required to be returned back to the Feldmans having regard to the significant issues associated with respect to the former legal counsel failing to correct an Affidavit and failing to properly put the evidence before the Court as noted in the Masters’ Decision.

The Feldmans, it is submitted. can address this issue of the manner in which their earlier application was presented before the Master with their former legal counsel. [ 11 ] Counsel for the Fedmans argues that the current disingenuous conduct of Respondents’ counsel should result in costs being increased by $500.00. Conclusion [ 12 ] With respect to the successful application by the Feldmans before me, I conclude that whatever failings previous counsel committed with respect to documents not before, or that were before, the Master were not relevant to the appeal that I heard.

If anything, they may be relevant only for purposes of rearguing what was originally before the Master.

In other words, but for these failings, the Master would have arrived at a different conclusion, which does not help the Respondent. [ 13 ] I conclude that that conduct, which apparently included procedural and evidentiary irregularities involving a former legal counsel for the Feldmans, should not result in the Feldmans being denied the return of costs they paid in relation to the first application before the Master when their Statement of Claim was struck. [ 14 ] With respect to the appeal I heard, I noted in my previous written reasons that there was non-compliance with certain procedural requirements for the appeal, and that new evidence was not brought forward by present counsel for the Feldmans on a timely basis.

Rule 6.14 required that the Appellant had to file and serve a transcript of the proceedings before the Master, and any additional evidence, within one month after service of their Notice of Appeal. What in fact happened was the new evidence that was filed by the Feldmans was served over three months after the Notice of Appeal was served, and the written argument was filed several months after that. [ 15 ] However Counsel for the Condominium Corporation waived all of these the procedural irregularities when this matter was heard by me.

I also concluded in my previous written reasons that there was no real or significant prejudice to the Condominium Corporation as a result of these deficiencies, which were not deliberate but were the result of sloppy practice. [ 16 ] Now that the Feldmans have been successful, it is somewhat problematic for counsel to raise these procedural arguments since counsel did not feel they were prejudicial or insurmountable in the first place.

As such, the fact that the procedural steps were done well outside the deadlines set by the Rule is of little consequence now with respect to costs, after the concessions made in that regard. [ 17 ] Given all of the circumstances of the case, the default rule with respect to costs should be followed, and the successful party will be awarded their costs. While it is correct that the majority of the Feldmans’ claims are as against the Defendant parties other than the Condominium Corporation, the appeal before me was only with respect to the Condominium Corporation, and no other Defendants participated in the

summary dismissal application. I conclude that it is proper to grant costs to the successful party on the appeal before me. [ 18 ] Furthermore I return the thrown away costs previously paid because those costs were paid directly as a result of the Master’s decision, that has now been overturned. Heard on the 17 th day of May, 2016. Dated at the City of Edmonton, Alberta this `10 th day of June, 2016. Donald Lee J.C.Q.B.A. Appearances: Allan Garber

Allan Garber Professional Corporation for the Plaintiffs Daniel C. P. Stachnik, Q.C. Miller Thomson LLP for the Defendant Owners: Condominium Plan 8321384 (Grandview Ridge Condominium Corporation)