Denis v Palmer, 2016 ABQB 54

Court of Queen ’ s Bench of Alberta Citation: Denis v Palmer, 2016 ABQB 54 Date: 20160126 Docket: FL01 20981 Registry: Calgary Between: Jonathan Brian Denis and Marguerite Denis Applicants - and - Breanna Carly Palmer Respondent ___________________________________________________ ____ Memorandum of Decision Regarding Costs of the Honourable Mr. Justice C.M. Jones _______________________________________________________ I.

Background [ 1 ] The Respondent, Breanna Palmer (“Palmer”), obtained an ex parte Emergency Protection Order (“EPO”) from the Provincial Court of Alberta against the Applicants, Jonathan Denis (“Denis”) and his mother, Marguerite Denis (“Ms. Denis”) on April 25, 2015. Denis was Palmer’s husband and, at that time, was Minister of Justice and Solicitor General for Alberta. [ 2 ] Denis and Ms.

Denis sought review of the EPO by this Court and asked for an Order: 1. abridging the time for service of their application; 2. bringing the matter of the Provincial Court EPO back before this Court for an expedited review; 3. setting aside or striking nunc pro tunc Palmer’s application before the Provincial Court for an EPO; 4. setting aside the EPO granted by the Provincial Court; 5. in the alternative, an order staying the EPO granted by the Provincial Court; 6. granting a publication ban in respect of these proceedings;

7. sealing the Court file; 8. restraining Palmer from having contact or communication, directly or indirectly, with respect to this action, with third parties, except as necessary for these proceedings; 9. in the alternative, an Order appointing case management; and 10. solicitor-client costs. [ 3 ] Denis argued that an expedited review of the EPO was essential.

The Provincial election was less than two weeks away and discussions among the parties had not resulted in a satisfactory resolution of the matter. [ 4 ] Palmer sought an Order from this Court pursuant to s. 4 of the Protection Against Family Violence Act , RSA 2000, c P-27 (the “ Act ”). [ 5 ] The parties appeared before me between April 28, 2015 and May 1, 2015. They provided written submissions on Saturday, May 2, 2015. II. The Decision [ 6 ] I gave the following oral decision on Monday, May 4, 2015 (“Decision”). 1. I rejected Denis and Ms.

Denis’ request for an Order setting aside or striking nunc pro tunc Palmer’s application before the Provincial Court for an EPO; 2. I accommodated their request to abridge the time for service; and 3. I revoked the EPO. [ 7 ] I declined Palmer’s request for an Order pursuant to s. 4 of the Act . [ 8 ] With respect to the publication ban, Denis and Ms. Denis changed their position and did not object to it being lifted. Palmer asked for an adjournment regarding that matter, seeking an opportunity to engage counsel experienced in publication bans.

I rejected her application for an adjournment and lifted the ban. [ 9 ] The parties were directed to provide written submissions if they were unable to agree on costs. I have received and reviewed: 1. Costs brief of Denis and Ms. Denis, filed September 30, 2015 (“Denis Costs Brief”); 2. Brief of argument in respect to costs of Palmer, filed September 30, 2015 (“Palmer Costs Brief”); and 3. Response by Denis and Ms. Denis to Palmer Costs Brief, filed November 10, 2015 (“Denis Reply Brief”). III. The Parties’ Positions Regarding Costs [ 10 ] The position of Denis and Ms.

Denis, as outlined in the Denis Costs Brief, may be summarized as follows: 1. The Decision was in their favour “without qualification” and Rule 10.29 of the Alberta Rules of Court (the “ Rules ”) therefore entitles them to costs. They assert that I did not find any of Palmer’s claims valid and, in some cases, suggested that her “account of the facts was entirely inaccurate”. They argue that I ruled that Palmer’s accusations of morally reprehensible behaviour on their part were without grounds. 2. Only the quantum of costs is in issue, not their entitlement to costs.

Because of the complexity and urgency of this matter, costs should be awarded in their favour on a solicitor-client basis or on the basis of a higher column than column 1 of

Schedule C to the Rules . 3. A second counsel fee, as referenced in

Schedule C to the Rules , is justified. They engaged three lawyers to represent them before me, while Palmer engaged two. 4. They point to a number of cases awarding solicitor-client costs in situations where a party’s behaviour was reprehensible, scandalous, outrageous or groundless or where allegations were untrue. 5. They argue that Palmer attempted to extract a large amount of money from them in order to withdraw her damaging allegations against Denis. They claim that a tentative settlement was reached but that the Palmer changed her mind and rejected it, refusing to entertain other offers.

While not formal offers, these “without prejudice” offers should be taken into account in determining costs. 6. They further argue that Palmer’s actions were scandalous and vexatious and that her actions were calculated to injure Denis “at a critical point and unjustly profit against him”, justifying a higher award of costs against her. They point to s. 13 of the Act which provides that “No person shall, with malicious intent, make a frivolous or vexatious complaint under this Act.” and claim that Palmer’s actions place her squarely within the confines of this section. 7.

They cite Shipanoff v Shipanoff , 2010 ABQB 496 as authority for the proposition that costs can be used to compensate someone who has been the target of “wrongful use of this important tool in our legislation.” They argue that a precedent is required to establish

that an EPO cannot be obtained frivolously, without merit and with intent to cause harm by wrongfully and publicly accusing an individual of such acts where no family violence has indeed occurred. 8. They assert that:

a) Denis was required to resign his position as Minister of Justice and Solicitor General for Alberta “as a result of [Palmer’s] false accusations”;

b) Denis may have lost his election bid “as a result of [Palmer’s] false allegations”; and

c) Palmer’s “vexatious conduct was punitive in nature and in fact has caused irreparable harm to [Denis’] career”. [ 11 ] Palmer’s position, set forth in the Palmer Costs Brief , may be summarized as follows: 1. The parties should bear their own costs. 2. The Provincial Court granted the EPO to Palmer who, as a “fleeing spouse” felt the need for immediate protection without notice to Denis. 3. Denis, not Palmer, sought an expedited review of the EPO in this Court. 4.

Citing JS v DJK , 2009 ABQB 425 , 484 AR 27, Palmer argues that she followed the “normal practice” for obtaining the EPO and that no award of costs would be appropriate, notwithstanding the EPO was not continued upon review by this Court. 5. In obtaining the EPO, Palmer did not engage in conduct warranting solicitor-client costs. This Court did not find specific misconduct by Palmer that would indicate deceit or dishonesty, justifying an award of solicitor-client costs. 6. Neither party was entirely successful and the complexity of the matter was not the responsibility of either party. 7.

If I award costs, they should be “discretionary” and subject to agreement between the parties as part of their divorce proceedings. [ 12 ] In response, Denis and Ms. Denis argue as follows in the Denis Reply Brief: 1. Palmer did not flee the matrimonial home. She waited ten days to commence her action in Provincial Court after moving out. There was no contact between the parties during this period. 2. They reiterate their assertion that Palmer sought an unreasonably large payment of money from Denis to make the matter “go away”. 3.

The EPO required Denis to resign as Minister of Justice and to take expeditious action to “clear his name”. 4. Failing to award costs will send a message that EPO applications that are not meritorious may be brought without consequence. A message needs to be sent to the general public that false allegations of family violence and collateral usage of EPOs will not be tolerated as they may diminish society’s view of the serious impact of family violence when it has in fact occurred. IV.

Law [ 13 ] It is trite law that costs are in the discretion of the Court; see, for example, Interclaim Holdings Ltd v Down , 1999 ABCA 329 , 250 AR 94. Nevertheless, that discretion must be exercised judicially and is guided by a number of factors. [ 14 ] Some of those guiding factors are set forth in the Rules applicable to costs: 1. Rule 10.29 provides, inter alia , that a successful party to an application, a proceeding or an action is entitled to a costs award against the unsuccessful party; 2. Rule 10.29(

a) provides that the principle it enunciates is subject to the Court’s discretion to award costs under Rule 10.31; 3. Rule 10.31 confers general discretion upon the Court to award costs, taking into account the factors specified in Rule 10.33; 4. Rule 10.33(1) provides as follows: 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. 5. Rule 10.33(2) provides as follows: 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. [ 15 ] Assessing the importance of the issues requires consideration of the objectives the Act seeks to achieve and the importance society attaches to protecting its vulnerable members from family violence. The

preamble to the Act states: WHEREAS the Government of Alberta is committed to the prevention of family violence; WHEREAS the Government of Alberta is committed to protecting victims of family violence from further violence; WHEREAS an effective response to family violence provides an immediate period of safety to victims of family violence; WHEREAS the Government of Alberta is committed to holding family members who are violent towards other family members accountable for their actions and the consequences of their actions; and WHEREAS the Government of Alberta is committed to breaking the cycle of family violence by preventing and deterring further violence; V.

Decision [ 16 ] Taking all of the foregoing into account, I have determined that it is appropriate for the parties to bear their own costs. Success before me was mixed. Denis and Ms. Denis were successful in having the matter heard sooner than might have otherwise been the case and in having the EPO revoked. However, I was not prepared to set aside the EPO nunc pro tunc . [ 17 ] I did not determine that the EPO, as issued by the Provincial Court Judge, was flawed. I neither sat in appeal from the Provincial Court nor engaged in judicial review of the Provincial Court’s decision.

My task was to conduct an EPO review as prescribed by s. 2(6) of the Act . It was not to second guess the decision of the learned Provincial Court Judge, who was within her jurisdiction to grant the EPO ex parte on the basis of Palmer’s evidence alone. Rather, it was to perform a review of the EPO in the context of the more fulsome factual matrix put before me. That expanded factual and evidentiary matrix allowed me to conclude that Palmer was not, at the time I rendered my decision, in danger of family violence or in need of protection. Thus, there was no need for the EPO.

This did not equate to a finding that the Provincial Court Judge erred in granting the EPO at the first instance and did not justify setting the EPO aside nunc pro tunc . [ 18 ] As noted above, Denis and Ms. Denis assert that Palmer’s actions in obtaining the EPO were vexatious and malicious and contrary to s. 13 of the Act . Their position is that Palmer should be penalized in costs to establish a precedent against improper use of the EPO legislation. [ 19 ] While I revoked the EPO, I made no finding that Palmer acted frivolously or without merit or that she intended to cause harm to Denis or Ms. Denis.

On its face, this matter evolved in accordance with the protocols set out in the Act , which allow for an EPO to be obtained ex parte , to be reviewed in this Court with the benefit of additional evidence and to be revoked or continued by this Court. [ 20 ] It is true that the Act prohibits making a frivolous or vexatious complaint with malicious intent. However, neither the Act nor the regulations thereunder prescribe a sanction for doing so.

Until such time as the Legislature sees fit to imbue the Act with some criteria for determining if a person should suffer consequences for failing to observe s. 13 , it does not seem reasonable for this Court to use its discretion to make a cost award to effect that result. That would require this Court to search for malicious intent by assessing an applicant’s professed subjective belief in the threat of family violence at the time of the EPO application before the Provincial Court.

In my view, this would be an unjustifiable exercise in speculation. [ 21 ] In any event, I did not make a finding that Palmer had acted wrongfully, vexatiously, or with malicious intent. I simply assessed the evidence that was put before this Court and determined that she did not have a reasonable fear of family violence. [ 22 ] Denis may have felt injured and aggrieved by Palmer’s actions. He may have felt that, because of his position, he had more to lose than another individual. That, however, is not an appropriate consideration for this Court on an EPO review.

This Court’s mandate on such a review is to apply the Act as intended, giving effect to the objects and purposes for which it was enacted. The narrow focus is whether a protection order is required to avert family violence.

[ 23 ] Accordingly, I direct that all parties in this matter shall bear their own costs. Dated at Calgary, Alberta this 26 th day of January, 2016. C.M. Jones J.C.Q.B.A. Appearances : Jeffrey D. Wise, Q.C. Wise Scheible Barkauskas for the Applicants Peter Watkinson Watkinson & Company for the Respondent