Blankenship v Jenks-Cochrane Properties Ltd, 2016 ABQB 642

Court of Queen’s Bench of Alberta Citation: Blankenship v Jenks-Cochrane Properties Ltd, 2016 ABQB 642 Date: 20161118 Docket: 1303 04619 Registry: Edmonton Between: Gabriele Blankenship Plaintiff - and - Jenks-Cochrane Properties Ltd., Brent Taylor, Gun-Shy Investments Ltd. Defendants _______________________________________________________ Memorandum of Decision Re Costs of the Honourable Madam Justice D.C.

Read _______________________________________________________ [ 1 ] On August 21, 2016, I released my written decision in respect to the above-noted matter, finding that Gabriele Blankenship, the Plaintiff had been oppressed by the corporate defendant Jenks-Cochrane Properties Ltd., acting through its director Brent Taylor. The amount owing pursuant to this judgment has been calculated to be $1,548,934.51 consisting of the value of Ms. Blankenship’s shares, wrongfully cancelled plus accrued dividends and interest. [ 2 ] I permitted the parties to speak to costs if they could not be agreed upon.

Unable to agree, they appeared before me on October 24, 2016 to settle the terms of the judgment roll and to speak to costs. [ 3 ] Many of the costs issues were resolved in oral reasons provided on the date of appearance. However, one costs issue remains outstanding: should the Plaintiff be entitled to costs under Column 1 or Column 5 of

Schedule C of the Alberta Rules of Court, Alta Reg 124/2010. [ 4 ] The Defendants argue that costs should be payable under Column 1 because the judgment roll is entirely declaratory in nature and a monetary judgment was not granted or declared.

[ 5 ] The Plaintiff asks for costs under Column 5, arguing that, in fact, an amount of judgment was effectively ordered against Jenks-Cochrane in paragraphs 192 and 193 of the judgment, which read as follows: [192] I declare that the preferred shares are valid and must be reissued by the corporation under the terms set out in Addendum A. I declare that the total face amount owing on these shares is $675,000. This number includes the $10,000 sent to Mr. Taylor [193] I declare that the Plaintiff is entitled to dividends on the preferred shares calculated pursuant to paragraph 2(

D) of Addendum A, of 12% per year on the amount owing and 6% per year on unpaid dividends. [ 6 ] This Court has wide discretion in granting costs.

Rule 10.33 sets out factors that must be considered in exercising that discretion. 1. the result of the action and the degree of success of each party; 2. the amount claimed and the amount recovered; 3. the importance of the issues; 4. the complexity of the action; 5. the apportionment of liability; 6. the conduct of a party that tended to shorten the action; and 7. any other matter related to the question of reasonable and proper costs that the Court considers appropriate. [ 7 ] The Court’s discretion must, of course be exercised judicially and in accordance with established principles: Northland Material Handling Inc. v.

Parkland (County), 2012 ABQB 586 ; Lameman v. Alberta , 2011 ABQB 532 . [ 8 ] Sections 1(1) to 1(4) of

Schedule C provide as follows: 1(1) This

Schedule specifies the lawyer’s fees that may be recovered as costs by one party from another.

(2) Each column of the tariff in Division 2 gives a dollar amount range for the purposes of determining the lawyer’s fee under that column for the work described under each item.

(3) Subject to subrule (4), the dollar range indicates the amount recoverable (

b) as against the defendant, with reference to the amount of the judgment or order against the defendant, or...

(4) Unless the Court otherwise orders, (

a) when a remedy is given in a judgment or order other than or in addition to the payment of money, or... Costs must be assessed according to the higher of Column 1 of the tariff in Division 2 and the scale that would have applied if the other remedy had not been given or sought. ... If nothing is said by the judge, the column of

Schedule C is set by the following rules: (

b) in Queen’s Bench, where the defendant is paying the costs, by the amount recovered; (

e) if any relief other than money is claimed, the minimum is Column 1, and if no money relief is claimed, the minimum is column 1 [ 9 ] Ms. Blankenship was entirely successful and I have already ordered that she is entitled to one set of costs from Jenks- Cochrane and Mr. Taylor, but not from Gun-Shy. [ 10 ] As the Defendants point out, the underlying application was non-monetary, so there was no amount claimed; nor was there any apportionment of liability. [ 11 ] In considering the factors enumerated under R. 10.33, the following are important to note: a.

The questions underlying this decision were important to the parties and given their radically different positions, had to be decided at a trial. b. The issues in the trial were relatively complex and they were made more so by the incomplete record and by the absence of some key witnesses. c. Although R. 10.33 specifically references conduct of a party that shortens an action or trial, I am of the view that conduct that lengthens a trial is also a factor to be considered when considering costs. Mr. Taylor’s conduct during the trial made it needlessly longer.

His answers to questions were often imprecise or tangential to the question asked. This made his examination and cross examination much longer than it would otherwise have been. Further, he took positions contradictory to the written documentation, stating, for example, that minutes of meetings he had attended and written records of resolutions passed, were ‘wrong’ for some unspecified reason. He even contradicted himself, taking a position one day that he rejected the next.

[ 12 ] These factors all weigh in favour of increased costs. [ 13 ] Further, although a declaration was sought and obtained, the financial stakes for each party were, in fact, clear and measurable. The declarations made included specific numbers or the means of easily calculating them. [ 14 ] Having regard to both the R. 10.33 factors and the clarity of the financial stakes, I am not satisfied that costs should be payable under Column 1 as the Defendants suggest. [ 15 ] In my view, the amount is large enough to attract costs under Column 5. Accordingly, the costs of the action are set under Column 5 of

Schedule C of the Rules of Court and may be taxed if the details cannot be agreed to. Heard on the 24 th day of October, 2016. Dated at the City of Edmonton, Alberta this 18 th day of November, 2016. D.C. Read J.C.Q.B.A. Appearances: Patrick D. Kirwin, Kirwin LLP for the Plaintiff Joseph J. Kueber, QC, Bryan & Company LLP for the Defendants