Fevry v Amar Developments Ltd, 2016 ABQB 661

Court of Queen’s Bench of Alberta Citation: Fevry v Amar Developments Ltd, 2016 ABQB 661 Date: 20161124 Docket: 1401 02589 Registry: Calgary Between: Jean Fevry Plaintiff - and - Amar Developments Ltd., Rani Duhra, Manjit Duhra and Gurmit Duhra Defendants _______________________________________________________ Reasons for Ruling on Costs of the Honourable Mr. Justice Bryan E. Mahoney _______________________________________________________ [ 1 ] On October13, 2016, after a two day trial, I gave an oral judgment in this matter.

I reserved my decision with respect to costs and directed the parties to file written submissions on costs within 30 days if an agreement could not be reached. [ 2 ] The plaintiff, Jean Fevry, has applied for a costs award as against the remaining defendant, Amar Developments Ltd. [ 3 ] The defendant argues that the outcome of this case is one of “mixed success” between litigants which requires an assessment of which party was more successful in the action.

The defendant submits that it was the more successful party, as the plaintiff was only awarded only approximately 23% of the relief he claimed. [ 4 ] The defendant also submits that it has a stronger claim for costs due to the plaintiff’s unproven claims of fraud against the defendant. [ 5 ] It is well accepted that the Court has wide discretion in ordering costs, which discretion must be exercised judicially and in accordance with established principles.

[6] The Rules of Court expressly state that the Court may consider the result of the action and the degree of success of eachparty, the amount claimed and the amount recovered, as well as the apportionment of liability. [7] The general rule for the payment of litigation costs is set out in Rule 10.29.

Generally, a successful party in litigation isentitled to the payment of costs unless there are special circumstances for not applying the rule. [8] While the plaintiff was not successful with respect to all of his claims, he was successful in recovering $74,500 which wasone-half of monies he paid towards the purchase price of the residential property but less than his total claim of $319,000. [9] Generally, costs follow the result. They are not usually apportioned on an issue-by-issue basis even if the successful partydoes not win on all of the issues.

Nevertheless, where success is divided on multiple issues, courts have discretion to apportion costs onan issue-by-issue basis. See Mark M. Orkin, The Law of Costs, 2nd ed, loose-leaf (Aurora Ont: Canada Law Book, 2013) at para 211.3. [10] The plaintiff claimed $319,000 against the Defendant and was awarded $74,500. The latter amount comprises 50% of moniesthe plaintiff paid to purchase the residential property but was only 23% of the total amount claimed. I found that a number of theplaintiff’s claims were without merit.

However, the plaintiff was successful in winning an award and, in that respect, this is not a case ofspecial circumstances. Therefore, the plaintiff normally would get his costs according to the appropriate column in

Schedule C of theRules of Court. However, the plaintiff’s unsuccessful allegation of fraud must also be addressed. [11] In his Statement of Claim, the plaintiff alleged fraudulent conduct on the part of the defendant. I found that there was noevidence to support the allegation that the defendant or any of its officers acted fraudulently. [12] I agree with the defendant’s submission that the case law has established that costs will not be awarded to a party that broughtunfounded allegations of fraud against another party.

Further, courts have held that a successful plaintiff who has failed to establish fraudshould be deprived of its costs. See Hamilton v Open Window Bakery Ltd 2004 SCC 9 , [2004] 1 SCR 303 para at 26; UPM-Kymmene Corp v UPM-Kymmene Mlramlchi Inc, (2004) (ON CA), 250 DLR (4th) 526 (ONCA) at para 13. [13] In UPM-Kymmene Corp, the Court of Appeal underlined that allegations of fraud are serious and potentially very damaging tothose against whom they are made.

At para 12, the Court quoted as follows from Bargman v Rooney (1998), 30 CPC (4th) 259 at paras18 and 19: It matters not, in my view, at what stage in the proceedings the unproved allegations are levelled. Because of their extraordinarily seriousnature - going, as they do, directly to the heart of a person’s very integrity - allegations of fraud and dishonesty are simply not to be madeunless there is every reasonable likelihood that they can be proved. The cost sanction exists in these circumstances to help ensure thatsuch will be the case ...

The cost sanction should be imposed sharply and firmly by the Courts, in my opinion, at any stage in theproceedings when unsupported and unproven allegations of fraud and dishonesty are put forward. [14] I would have awarded the plaintiff costs under the appropriate column of

Schedule C of the Rules. However, the plaintiff hasfailed to establish fraud. In the result, he is deprived of those costs. Dated at the City of Calgary, Alberta this 24th day of November, 2016. Bryan E. Mahoney J.C.Q.B.A. Appearances: Ryan S. McCall and Blessing Adeleye Machida James McCall for the Plaintiff Anna Sledziecka, Andrew MacGregor and Agnes Bielecki Dentons Canada LLP

for the Defendants