1400467 Alberta Ltd., Adderley Holdings Ltd., Herlick's Welding Ltd., MacPherson Pipeline & Oilfield Consulting Inc., Lynco Construction Ltd. Plaintiffs/Respondents - v. -, 2016 ABQB 67

Court of Queen ’ s Bench of Alberta Citation: 1400467 Alberta Ltd v Adderley, 2016 ABQB 67 Date: 20160201 Docket: 1103 12774 Registry: Edmonton Between: 1400467 Alberta Ltd., Adderley Holdings Ltd., Herlick's Welding Ltd., MacPherson Pipeline & Oilfield Consulting Inc., Lynco Construction Ltd. Plaintiffs/Respondents - and - John Adderley, Colin MacPherson, Ivan Herlick, Jico Holdings Ltd., Ulster Cattle Corp., CJM Consulting Services Inc. and Clouded Moon Consulting Ltd. and Pro Canada West Energy Inc.

Defendants/Applicants Colin Macpherson, John Adderley, John Adderley as Trustee of the J&S Adderley Family Trust, Ivan Herlick, Jesse Herlick, Robyn Herlick and Tracy Herlick Plaintiffs by Counterclaim 1400467 Alberta Ltd. and Lynco Construction Ltd. Defendants by Counterclaim _______________________________________________________ Endorsement of the Honourable Madam Justice J.B. Veit

_______________________________________________________ [ 1 ] Relying on 2015 ABQB 656 , where I admitted that I had misunderstood one aspect of the facts presented on the application which resulted in 2015 ABQB 524 , the defendants now ask for costs in relation to the latter decision. Specifically, the defendants write “Given that but for the misstatement of facts by the counsel for the Plaintiffs, we would have been successful in the May application . . .” they should be entitled to costs.

The application is denied; each party shall bear their costs of the 524 application. [ 2 ] The defendants’ proposal is rejected for two reasons: first, at the hearing in question, plaintiffs’ counsel misstated the role of a lawyer in Saskatchewan proceedings. I referred to that role in para. 28, i.e. the Background section, of my decision. The lawyer’s role was not a factor in my reasoning on the issue of whether the plaintiffs could resile from an agreement.

Nonetheless, as I said in my 656 decision, the misstatement concerning the lawyer’s role was unfortunate; in my view, lawyers must take care not to besmirch the reputation of a professional colleague.

As to the seriousness of the misstatement, as I mentioned in my decision, the misstatement was not, in relation to the overall decision, serious: as to the lack of professional courtesy, the lawyer for the plaintiffs was apparently unable to check a transcript of the Saskatchewan proceedings because none could be obtained, and as to the substantive issue, the bankruptcy proceedings were, in my view, misconceived for the limitations reasons which I gave. [ 3 ] Plaintiffs’ counsel did not misstate the timing of the bankruptcy application; the error which occurred in that chronology was entirely my own.

And it was that error – my error about the timing of the bankruptcy application - not the error with respect to the lawyer’s involvement in the defendants’ treatment of their Saskatchewan claim, which was fundamental to my decision that the plaintiffs could resile from their agreement. [ 4 ] The second reason why the proposal is rejected is that 524 did not deal only with the agreement concerning pleadings; cross- motions were heard on the various dates in question.

The plaintiffs were successful in their application; although initially unsuccessful in their cross-application, as a result of 656, the defendants were also successful on their application. In the result, each party was successful on their own motion; therefore, each party should bear their own costs of the hearings which resulted in the 524 decision. Submissions made October 16 and November 30, 2015. Dated at the City of Edmonton, Alberta this 29 th day of January, 2016. J.B. Veit J.C.Q.B.A. Appearances: Robert B. White Q.C., Robert B White & Company for the Applicants Carmen L.

Plante, Bishop & McKenzie LLP for the Respondents