Graham Group Ltd v Labas Estate, 2017 ABQB 368

Court of Queen’s Bench of Alberta Citation: Graham Group Ltd v Labas Estate, 2017 ABQB 368 Date: 20170608 Docket: 1503 17353 Registry: Edmonton Between: Graham Group Ltd, Graham Construction Resources LP, Brxton Construction Ltd and Brxton Construction LP Plaintiffs - and - Mark Labas, Deceased and the Estate of Mark Labas by Its Litigation Representative Anita Rose Labas, Anita Rose Labas, ARL Enterprises Ltd, Gio Industries Inc, Luigi Bombini, 918944 Alberta Ltd, Guido Bombini, Luigi Bombini and Guido Bombini carrying on business in partnership as Bombini Brothers Masonry, Leitch Construction Inc formerly 1173827 Alberta Ltd, Michael Leitch and Others Defendants _______________________________________________________ Reasons for Judgment of the Honourable Mr.

Justice J.J. Gill _______________________________________________________ Introduction

[ 1 ] On April 3rd, 2017, I dismissed an Application by the Defendants Leitch Construction Inc and Michael Leitch (“the Defendants”) to set aside a Norwich Order (“the Application”). I awarded taxable costs to the Plaintiffs. The parties have been unable to agree on costs and made written submissions. This decision addresses the issue of taxable costs. Positions of the Parties [ 2 ] The Plaintiffs submit that the Court should tie the taxable costs of the Application to the amounts at issue in the litigation (between $5 to $7.9 million), and also give effect to the Plaintiffs two Calderbank Offers.

The Plaintiffs suggest a multiple of five times Column 5. [ 3 ] The Defendants submit that the taxable costs for the Application should be Column 1 with no multiplier. Issues 1) What is the appropriate Column? 2) What impact, if any, should the Calderbank Offers have on the award of costs? Analysis 1) What is the appropriate Column? [ 4 ] This case involves complex issues and a potential liability for a substantial amount. However, it is relevant that the Norwich Order did not seek any financial relief.

In addition, the Defendants were not parties to the original lawsuit and were only added as parties several months after the Norwich Order was granted. [ 5 ] The cases cited by the Plaintiffs to support an award of enhanced costs are distinguishable as they involved much more questionable or blameworthy activity by the parties. [ 6 ] Taking these circumstances into account, I find the appropriate Column for costs on this application to be Column 3. 2) What impact, if any, should the Calderbank Offers have on the award of costs? [ 7 ] Prior to the Application, the parties exchanged Calderbank Offers.

The Plaintiffs offered to allow the Defendants to withdraw the Application on a without-cost basis, while the Defendants offered to allow the Plaintiffs to set aside the Order on a without-costs basis. [ 8 ] I am satisfied that the Calderbank Offers made by the Plaintiffs were genuine offers and provided a costs advantage to the Defendants. They were presented with ample time for consideration and were rejected by the Defendants. The Plaintiffs fared better as a result of the Application than if the offer had been accepted.

The Defendants did not beat the Calderbank Offers to withdraw without costs. [ 9 ] For these reasons, I agree with the Plaintiffs that it is reasonable to award double costs as a result of their Calderbank Offers. Conclusion [ 10 ] I award taxable costs of two times Column 3. Written submissions provided on May 30, 2017 and June 2, 2017. Dated at the City of Edmonton, Alberta this 8 th day of June, 2017.

J.J. Gill J.C.Q.B.A. Appearances: Sandeep K Dhir, QC Field Law for the Plaintiffs Louis M H Belzil, QC Rackel Belzil LLP for the Defendants Leitch Construction Inc and Michael Leitch