1529771 Alberta Ltd Plaintiff - v. -, 2016 ABQB 378

Court of Queen’s Bench of Alberta Citation: 1529771 Alberta Ltd v John Bosco Child and Family Services Foundation (Bosco Foundation), 2016 ABQB 378 Date: 20160706 Docket: 1503 14266 Registry: Edmonton Between: 1529771 Alberta Ltd Plaintiff - and - John Bosco Child and Family Services Foundation also known as the Bosco Foundation also known as Bosco Homes and Bosco Homes a Society for Children and Adolescents, now known as the Unlimited Potential Community Services Society; Elliot - Abrams Engineering Ltd, Norman Elliot, Penguin Air-Tech Corporation operating as Penguin Heating, Air Conditioning and Refrigeration, and 799536 Alberta Ltd operating as Aiken's Plumbing and Interspace Construction Limited Defendants _______________________________________________________ Reasons for Judgment of W.S.

Schlosser , Master in Chambers _______________________________________________________ [ 1 ] The issue is whether there should be a Rule 4.29 cost consequence for a Formal Offer made early in the proceedings. [ 2 ] A Rule 4.24 Formal Offer was made November 3 rd , 2015. By this offer, the Defendant offered to take a discontinuance without costs. This was not long after the Statement of Claim, which had been filed September 17 th , 2015. A Statement of Defence followed the Formal Offer on November 4 th , 2015.

The offer was open for acceptance until January 5 th , 2016. [ 3 ] In early December the offeror provided documents in support of its position. It indicated that if the offer was not accepted by the deadline it would bring a

Summary Judgment application. The successful

Summary Judgment application was heard and determined June 23 rd , 2016, but reserved on the issue of costs to give the parties an opportunity to provide further materials. Authorities Cited

1. Allen (Next Friend of) v Mueller , 2006 ABCA 101 2. H(SG) v Gorsline , 2001 ABQB 671 , per McMahon J 3. VAS v Grace , 2015 ABQB 7 , per Veit J [ 4 ] The successful Applicants were designers of the mechanical system in a building later purchased by the Plaintiff. The HVAC system was not built in accordance with the design, and the Plaintiff says the as-built configuration impaired the function of a structural wall. The work was approved by others.

The engineer’s involvement ended more than 13 years before the lawsuit started. [ 5 ] The Allen case (under the old Rules) tells us that a Formal Offer must be genuine to be effective. It is to be ‘reasonable and realistic’ and it must incorporate an element of compromise. The time to assess its bona fides is the time it was served and the time that it was open for acceptance . [ 6 ] The Applicant’s costs would have been nominal at the time the offer was made. However, over the time for acceptance, the offeror filed its defence and produced documents, ultimately used in support of the

Summary Judgment application, to try to persuade the Plaintiff of its position. [ 7 ] The approach taken by the offeror is consistent with the Foundational Rules and it adds credibility to the offer. A lawsuit sets a chain of events in motion mandated by the Rules. While the element of compromise was mainly prospective when this offer was made, it became real as the Defendant was obliged to take steps in the lawsuit over the time the offer was open for acceptance. [ 8 ] Litigation can be a harsh and unforgiving land. The Plaintiff did not have a case against the Applicant when the lawsuit was started and could not put one together by the time the

Summary Judgment application was heard, nearly a year later. Even double

schedule C costs will not indemnify the Defendant for the expense that it has been put to in this litigation. Disposition [ 9 ] The applicant is permitted double costs for all steps taken after service of the offer. Heard on the 23 rd day of June, 2016. Dated at the City of Edmonton, Alberta this 6 th day of July, 2016. W.S. Schlosser M.C.C.Q.B.A. Appearances: Bruce Comba Emery Jamieson LLP for the Defendants, Elliot-Abrams Engineering Ltd and Norman Elliott Tuan Nguyen and Simone Conrad Wood Law Office for the Plaintiff, 1529771 Alberta Ltd