Elford v RBC Dominion Securities Inc, 2016 ABQB 34

Court of Queen ’ s Bench of Alberta Citation: Elford v RBC Dominion Securities Inc, 2016 ABQB 34 Date: 20160118 Docket: 0306 01086 Registry: Lethbridge Between: Lawrence Edward Elford Plaintiff/Applicant - and - RBC Dominion Securities Inc. and RBC Dominion Securities Limited carrying on business as RBC Investments and as RBC Financial Defendants/Respondents Corrected endorsement: A corrigendum was issued on January 19, 2016; the corrections have been made to the text and the corrigendum is appended to this endorsement. _______________________________________________________ Endorsement on Costs of the Honourable Mr.

Justice W.P. Sullivan _______________________________________________________ [ 1 ] I rendered my decision in this matter on November 16, 2015 after a nine day trial at Lethbridge. The Plaintiff Elford was unsuccessful in proving his constructive dismissal claim and the Defendants RBC Dominion Securities essentially abandoned, during the course of the trial, their counter-claim against the Plaintiff Elford for allegedly appropriating information belonging to the Defendants

RBC Dominion Securities. The facts of this case, the approach of the Plaintiff towards this Defendant and the response of the employer was set out in my oral Judgment of November 16, 2015. [ 2 ] Although the Defendants were in the words of the Plaintiff, “successful in processing a minuscule indemnity” in the amount of $4,862.00 against the Plaintiff, both the counter-claim and the indemnity claim occupied a minimal amount of court time on the part of the parties. [ 3 ] The Defendants seek costs based on a multiple of Column 5 of

Schedule C or a percentage of legal fees “to at least 50% of the actual legal fees of $619,030.30 plus disbursements, other costs and tax in the amount of $78,598.42.” [ 4 ] This litigation spanned a period of approximately 13 years. The Plaintiff having sued RBC Dominion Securities for $18.1 million in damages. [ 5 ] The structure of the claim and the convoluted nature of the proceeding and the pursuit of the claim entailed extensive work on the part of the Defendant and required the engagement of more than one counsel.

In this case the Defendant seeks second counsel fees in the amount of $22,250.00. [ 6 ] In their written submissions to me the Defendants allege among other things that: Mr. Elford produced multiple affidavits of records, containing thousands of pages of irrelevant and immaterial records that had to be culled by counsel for RBC, and which necessitated three separate questionings. Affidavit evidence was necessary in response to a groundless allegation by Mr. Elford on the eve of trial that RBC had failed to produce critically relevant documents.

An extensive and time-consuming review process was undertaken by counsel for RBC to ensure and demonstrate that there was no merit to the allegation, for which RBC incurred legal costs of approximately $15,000.00. Mr. Elford served two expert reports without any warning and within weeks of trial, one of which had been in his possession for more than a year. A contested application was required to determine the procedure for dealing with those expert reports.

At trial, the Court found that the reports carried little or no weight. [ 7 ] The Defendants ask for a costs award in the amount of $410,850.00. [ 8 ] The Defendants draft bill of costs for reference purposes calculate costs on a single column 5 of

Schedule C at $53,250.00, exclusive of disbursements ($47,547.75 including GST). In their submissions the Defendants say that the suit was for a very large amount that The allegations against them were serious, significant, highly important to RBC, and ultimately found to be scurrilous and in part based on evidence, fabricated by Mr. Elford to bolster his own position.

The Plaintiff brought his unfounded accusations of the conduct of RBC and its employees directly to the President of RBC to news outlets and to every regulator in the country. [ 9 ] The trial was initially scheduled for three weeks with an anticipated 14 witnesses to be called by the Plaintiff and 14 by the Defendants. [ 10 ] The Defendants say “the complexity and general importance of the issues to the parties ... a second counsel fee is warranted and reasonable in the circumstances.” [ 11 ] Mr. Justice Michalyshyn in Louw v.

Hamelin-Chandler , 2012 ABQB 52 at para 27 : As to an enhanced scale, the following factors flow from the cases: (

a) the outcome was of particular importance to the parties: RIC New Brunswick Inc. v. Telecommunications Research Laboratories; Freyberg v. Fletcher Challenge Oil and Gas Inc.; Eggertson v. Alberta Teachers' Association ; notwithstanding the matter may be of limited if any importance to the 'general public': Broers v. Real Estate Council of Alberta ; where "the issues on which [the successful party prevailed] were important not only between the parties, but also to the community at large": Waste Management of Canada Corporation v.

Thorhild (County); International Association of Machinists and Aerospace Workers, Local Lodge No. 99 v. Finning International Inc.; Chancellor Management Inc. v. Oasis Homes Ltd. ; and finally, Court v. Alberta (Environmental Appeal Board) ; (

b) the successful party incurred significant liability to retain legal counsel: Eggertson v. Alberta Teachers' Association ; commensurate with the importance of the issues: International Association of Machinists and Aerospace Workers, Local Lodge No. 99 v. Finning International Inc. ; and a liability which could deter the party and others similarly situated from participating in public affairs: Waste Management of Canada Corporation v. Thorhild (County) ; (c) "exceptional circumstances" were found: Lameman v. Alberta (e.g., an adjournment attributed entirely to the costs-paying party); (

d) the successful party needed to defend his or her reputation or standing: Eggertson v. Alberta Teachers' Association ; Waste Management of Canada Corporation v. Thorhild (County) ; (

e) the issues were complex: Broers v. Real Estate Council of Alberta ; International Association of Machinists and Aerospace Workers, Local Lodge No. 99 v. Finning International Inc. ; Chancellor Management Inc. v. Oasis Homes Ltd. ; Acquest/Alberta Mining Inc. v. Barry Developments Inc. ; Archmetal Industries Corp. v. Jag Flocomponents (North America) Inc.

[ 12 ] Although the issues in this case were not complex, they required extensive research and detail compilation because of the multiplicity of documents and activities engaged in by the Plaintiff in the period leading up to his exit from RBC Dominion Securities. RBC Dominion Securities needed to defend their reputation and standing in the community. They incurred a significant liability retaining counsel. I find this was commensurate as Mr. Justice Michalyshyn said with the importance of the issues.

Although the matter may be of limited importance to the general public, it was important to the RBC community. [ 13 ] Keeping in mind the actual legal expense for preparing the defence of this matter to the Defendants and keeping in mind the issues that I have outlined above, including the costs associated with out-of-town counsel which I find in this case to be reasonable, the need for second counsel and the detailed effort required to defend this action, and a review of the cases cited to me by counsel: Marathon Canada Ltd. v Enron Canada Corp. , 2008 ABQB 770 Trizec Equities Ltd. v Ellis-Don Management Services Ltd. , 1999 ABQB 801 321665 Alberta Ltd. v.

ExxonMobil Canada Ltd. , 2012 ABQB 76 Ed Miller Sales & Rentals Ltd. v. Caterpillar Tractor Co. , 1998 ABCA 118 Chapell v Canadian Pacific Railway , 2011 ABQB 74 Cornelson v. Alliance Pipeline Ltd. , 2015 ABQB 427 Alberta Productions Corp. v. Canada Lands Co. CLC Ltd. , 2004 ABCA 25 and noting what was said by The Court of Appeal in Ed Miller Sales & Rentals Ltd. v Caterpillar Tractor Co. , at para 12 : Another factor is the seriousness of this suit. The amounts were enormous, the charges were grave, and the business implications considerable.

If ever there was a suit which did not call for penny-pinching half measures by the defendant, this was it. I am satisfied the Defendants are entitled to a global amount for costs in the amount of $200,000.00 inclusive of all fee items, disbursements and other amounts to which they may be entitled, including this cost hearing. Written submissions provided in December, 2015. Dated at the City of Lethbridge, Alberta this 18 th day of January, 2016. W.P. Sullivan J.C.Q.B.A. Appearances: Michael J. Pollard for the Applicant James B. Rooney, Q.C., Thomas P. O’Leary, Emily McCartney for the Defendants

Corrigendum of the Endorsement on Costs of The Honourable Mr. Justice W.P. Sullivan ____________________________________________________________________________ Page: 2; Para 8; line 2: Delete: inclusing Insert: including Page 5; Appearances: Add for Defendants: Thomas P. O’Leary, Emily McCartney