Madore v Madore, 2017 ABQB 391

Court of Queen’s Bench of Alberta Citation: Madore v Madore, 2017 ABQB 391 Date: 20170620 Docket: 4801 153461 Registry: Calgary Between: Angus Blair Madore Plaintiff/Respondent - and - Mary Jean Madore Defendant/Applicant _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice M. David Gates _______________________________________________________ Introduction and Overview [ 1 ] The Applicant, Mary Jean Madore (“Ms. Madore”) seeks enhanced costs flowing from this Court’s March 14, 2016 order dismissing the Plaintiff’s Matrimonial Property Act, R.S.A. 2000, c.

M-8, action for long delay ( Madore v. Madore , 2016 ABQB 146 ). The Plaintiff’s appeal to the Court of Appeal was dismissed on March 10, 2017. [ 2 ] This costs application was initially heard on March 23, 2016, at which time Ms. Madore urged the court to order enhanced costs, and specifically solicitor-client costs from March 19, 2015 onward. In addition, Ms. Madore submitted that some or all of the costs in the within matter should be paid personally by counsel for Angus Blair Madore (“Mr. Madore”), Mr. S. O’Neil, pursuant to Rule 10.50 of the Alberta Rules of Court .

The costs hearing was, accordingly adjourned to permit Mr. O’Neil, to obtain legal advice. Mr.

Gavin Price appeared on behalf of both the Plaintiff and Mr. O’Neil when the matter was continued on January 9, 2017 and May 8, 2017. These are my reasons for decision. Background [ 3 ] This costs application follows an order dismissing the matrimonial property action instituted by the Respondent/Plaintiff on the basis of long delay. In the alternative, Ms. Madore alleged that the Trustee in Bankruptcy for the Respondent/Plaintiff has discharged any claim that he had in the matrimonial property. In addition, Ms.

Madore sought an order discharging the Certificates of Lis Pendens registered against the various properties. [ 4 ] In the alternative, the Applicant/Defendant asked this court to make a procedural order advancing the action to a

summary trial. In this regard, she sought security for costs relative to any such

summary trial ordered and an order that a failure to comply with the procedural order would result in the dismissal of the Respondent’s action. [ 5 ] This application was heard by me by way of a Special Chambers Application on January 12, 2016. At the conclusion of oral argument, I adjourned the matter to January 22, 2016, at which time I allowed the Respondent/Plaintiff to file a supplementary brief by February 12, 2016. Counsel for the Applicant/Defendant was given until February 26, 2016, to file any response submissions that she wished to place before the court.

Both parties filed briefs. [ 6 ] As previously indicated, I filed written reasons on March 14, 20176, dismissing the action for long delay. The Law [ 7 ] The law relating to the awarding of costs at the conclusion of legal proceedings has been the subject of extensive discussion in the various authorities referred to by the parties, as well as numerous others. [ 8 ] Generally, costs are awarded at the discretion of the court: Court of Queen’s Bench Act , RSA 2000, c. C-31, s. 21. The power to award costs by one party to another party is set out in Rule 10.31(1) of the Alberta Rules of Court .

The factors to be considered in making an award of costs are set out in Rule 10.33 as follows: 10.33(1) 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.

(2) 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) the 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. [ 9 ] Rule 10.50 deals with costs being imposed on a lawyer. It states: If a lawyer for a party engages in serious misconduct, the court may order the lawyer to pay a costs award with respect to a person named in the order. [ 10 ] While the decision of Hutchinson J. in Jackson , predates the most recent Rules of Court , I am satisfied that the comprehensive statement of principles contained therein remains valid. I would summarize those principles as follows:

a) a trial judge has a wide discretion when awarding costs;

b) generally speaking, costs follow the event, i.e. the successful party is entitled to be paid a portion of his or her costs in pursuingthe claim;

c) the successful party is normally entitled to party-and-party costs. “It is not intended that the successful party receive fullindemnification of those fees and disbursements which it would be charged by its counsel” (per McDonald J. in Reese v. Alberta, (AB KB), 5 Alta. L.R. (3d) 40 (Q.B.) at para. 7;

d) costs on a solicitor-client basis are to be awarded in a “rare and most exceptional case” (per Freedman J.A. in Evaskow v. B.B.F.(1969), (MB CA), 71 W.W.R. 565 (Man. C.A.), at p. 570;

e) the practice in Alberta is that the court will order the unsuccessful party to pay a multiple of the fees set out in the applicableschedule when the case is “of considerable magnitude and complexity” (per Hutchinson J. in Jackson, at para. 13). Even then, theobjective is not to provide full indemnity; f) “Departure from the general rule of party-and-party costs requires extreme caution and should occur only in rare and exceptionalcircumstances.” (per Veit J. in Max Sonnenberg Inc. v. Stewart, Smith (Canada) Ltd., [1987] 2 W.W.R. 78 (Alta. Q.B.);

g) costs and damages should not be confused. Costs deal with the conduct of the litigation, whereas damages deal with the conductof the parties that give rise to the action. (per Lutz J. in Olson v. New Home Certification Program of Alta. (1986), (AB KB), 44 Alta. L.R. (2d) 207 (Q.B.) [11] Hutchinson J. goes on, at para. 28, to provide examples of the types of cases which have been found to involve the type of rareand exceptional circumstances justifying an award of solicitor-client costs. I have included only the first five examples provided byHutchinson J. as I have concluded that the other four are of no relevance to the within matter: (

i) circumstances constituting blameworthiness in the conduct of the litigation by that party (Reese); (ii) cases in which justice can only be done by a complete indemnification for costs (Foulis v. Robinson, (ONCA), 21 O.R. (2d) 769 (Ont. C.A.); (iii) where there is evidence that the plaintiff did something to hinder, delay or confuse the litigation, where there was no serious issueof fact or law which required lengthy and/or expensive proceedings.

Similarly, where one party was “contemptuous” of the aggrievedparty in forcing that aggrieved party to exhaust legal proceedings to obtain that which was obviously his (Sonnenberg); (iv) an attempt to deceive the court and defeat justice, a requirement to prove facts that should have been admitted, unnecessaryadjournments, concealing material documents from the plaintiffs and failing to produce material documents in a timely fashion (Olson); (

v) where the defendants are guilty of positive misconduct, where others should be deterred from like conduct and the defendantsshould be penalized beyond ordinary costs (Dusik v. Newton (1984), (BC SC), 51 B.C.L.R. 217 (S.C.)); [12] Jerke J discussed the awarding of solicitor-client costs in instances of misconduct in Enoch Cree Nation v.

Prue, 2014 ABQB455. (See also College of Physicians & Surgeons (Alberta) v H(J), 2009 ABQB 48 at paras 4-23.) At para. 9 in Enoch Cree, he stated: Solicitor-client costs are appropriate where misconduct occurs during a legal proceeding: Polar Ice Express Inc v Arctic Glacier Inc,2009 ABCA 20. There is much discretion in the Court concerning the awarding of full indemnity costs or solicitor-client costs on thebasis of party misconduct, however such awards are reserved for rare and exceptional or unusual circumstances: Powermax Energy Inc v. Argonauts Group Ltd, 2003 ABQB 543, 16 Alta LR (4th) 90, Jackson v.

Trimac Industries Ltd (1993), (AB KB),138 AR 161, 8 Alta LR (3d) 403 (ABQB), affirmed on costs, 1994 ABCA 199 , 155 AR 42, 20 Alta LR (3d) 117 (ABCA). [13] Counsel also referred to a number of case authorities in both their oral and written submissions. Reference is made to thesedecisions in the analysis that follows below. Analysis [14] The Applicant/Defendant in this instance seeks triple

Schedule C costs calculated on the basis of Column 5. The bill of costspresented to the Court totals $32,793.75. During oral argument, Ms. Madore conceded that the threshold for full indemnity or solicitor-client costs has not been met in this instance. However, she seeks both enhanced costs and, specifically, costs against opposing counselpersonally. [15] Ms. Madore maintains that Column 5 is the appropriate column in light of the fact that the Respondent/Plaintiff was making amatrimonial property claim against all three properties which he evaluated at almost $3 million. [16] The Respondent/Plaintiff, on the other hand, says that the appropriate costs column is Column 1 from

Schedule C of theRules of Court, on the basis that his initial action for divorce and relief pursuant to the Matrimonial Property Act, involves no monetaryamount. He suggests that this action is akin to an application for an injunction and, according, falls under Column 1 for the awarding ofcosts. I unable to accept this argument. I note that the applicability of Column 1 to Matrimonial Property Act proceedings wasspecifically addressed by Read J. in Katrib v. Katrib, 2008 ABQB 162, wherein Madam Justice Read also discussed the challenges

associated with determining the monetary value involved in matrimonial matters. While it is clear in this instance that the Statement ofClaim makes no reference to a specific dollar amount, the Respondent/Plaintiff was clearly seeking an equal division of all matrimonialproperty. Under the circumstances, there is simply no merit to his argument that no monetary amount was involved in this litigation.Counsel for Mr. Madore fairly conceded as much during the course of oral argument. [17] There is limited evidence before me on the value of the three properties. Ms. Madore filed an excerpt of an affidavit sworn byMr.

Madore on April 27, 2015, in which he stated that he believed Ms. Madore “had at least $2M in land in her name”. In making thisstatement, I am satisfied that Mr. Madore was referring to the gross value of the land. In a letter dated November 5, 2015, Mr. O’Neilwrote to the Trustee in Bankruptcy relative to Mr. Madore’s bankruptcy and advised that he had received an appraisal of the matrimonialhome valuing the property at $1,350,000. In an affidavit sworn June 10, 2015, Mr.

Madore swears to the existence of this same appraisaland goes on to suggest that the two other vacant parcels of land would each be worth approximately $900,000. [18] On the other hand, I have evidence before me that Ms. Madore was, at one point, willing to settle the claim for $325,000.Similarly, Ms. Madore has filed in evidence correspondence dated January 20, 2016, in which Ms. Madore’s counsel stated that the valueof the matrimonial home quarter

section alone was $1M, less a mortgage of approximately $500,000. [19] While the evidence of the value of the properties is less than conclusive, I am satisfied that in the unique circumstances of thiscase it is appropriate to use Mr. Madore’s numbers when quantifying the monetary value of his claim. His estimate in 2015 was $3.15M.Even taking fifty percent of that amount as Mr. Madore’s claimed equal share of the matrimonial property, this amounts to $1.575M.While this is a gross value that does not account for any debt registered against the property, there is ample evidence that Mr.

Madore’sfailure to share in the matrimonial debt or make any payments towards child or spousal support led Ms. Madore to mortgage thematrimonial home following separation. Under the circumstances, I am satisfied that it is appropriate to use this $1.575M amount indetermining the proper column under which costs are to be determined. Accordingly, I find that costs are properly determined inaccordance with Column 5. [20] The Applicant/Defendant advances a number of reasons justifying the awarding of enhanced costs in this instance. She relieson a series of decisions, including Grisbrook v.

Grisbrook, 2016 ABQB 455, V.N. v. P.S., 2014 ABPC 217, Knox v. Knox, 2005 ABQB67, Shaw v. Shaw, 2014 ABQB 165. Counsel for Mr. Madore also referred me to the decision of Rooke J (as he then was) in ParkridgeHomes Ltd. v. Anglin, [1996] A.J. No. 768. I have also considered the decisions in Claudio’s Restaurant Group Inc v. Calgary (1993 (AB KB), 15 Alta LR (3d) 141, McCoy v. Manufacturers Life Insurance Co., 2002 ABQB 298, Strathcna(Country) v. Madison Development Corp., 2004 ABQB 483, Citadel General Assurance Co. v. Lloyd’s Bank of Canada, (AB KB), [1993] 8 WWR 118, and Jones v.

Trans America Life Insurance Company of Canada (1996), 1996 ABCA 165 , 39 Alta LR (3rd) 1. All of these cases are helpful in terms of illustrating the application of the various factors set out in Rule10.33 and various factual circumstances where enhanced costs were considered appropriate in the context of family law litigation. [21] First, Ms. Madore says that the Respondent/Plaintiff failed to follow the order of Campbell J. in that he never filed aresponding concise letter relative to the application for dismissal for long delay.

As such, the Applicant/Defendant points out, correctlyin my view, that the Respondent/Plaintiff’s materials failed to address the very issues raised in her application, namely the application todismiss for long delay and the alternative remedy of security for costs. The Applicant/Defendant maintains that the Respondent/Plaintiffprepared materials as if the Campbell J. order did not even exist.

While referring to the application to dismiss for long delay in hismaterials, he focused on his own cross-application to compel attendance for questioning. [22] Faced with an applicant’s concise letter, counsel for the Applicant/Defendant felt compelled to also file a second conciseletter, this one responding to the Respondent/Plaintiff’s brief. As such, she says that additional cost was incurred by Ms. Madore in theprocess. Unfortunately, counsel for Mr. Madore did not do likewise and failed to file a response brief addressing the two central issuesraised in Ms. Madore’s application.

As more fully described below, the Applicant/Defendant also relies on the actions of Mr. O’Neil infailing to file an adequate concise letter as misconduct warranting the awarding of costs against Mr. O’Neil personally. [23] Current counsel for the Respondent/Plaintiff concedes that this was a significant error on the part of Mr. O’Neil, though urgesthis court to find that it was conduct falling far short of serious misconduct. As such, he says that there is nothing in the circumstancesthat warrant a finding of bad faith or positive misconduct so as to justify an award of costs against Mr.

O’Neil personally. [24] With some reluctance, I am prepared to accept this characterization of Mr. O’Neil’s conduct as a significant error. Whether itis conduct that justifies an award of costs against Mr. O’Neil personally is addressed below.

However, I am satisfied that it is a factorthat must be taken into consideration in my assessment of the appropriate costs to be awarded in this instance. [25] Having regard to the content of the transcript from the June 18, 2016 court appearance, I can accept that there may have beensome confusion or uncertainty as to the obligations resting on him flowing from the Campbell J. order. Nevertheless, I find that hissubsequent conduct compounded this initial error and was both careless and ill-considered. It my view, it bordered on negligence. Oncehe received the first brief from Ms.

Stephen, any misunderstanding in terms of what was required of his client in preparing for the familyspecial application should, at the very least, have let Mr. O’Neil to make inquiries. There is no evidence before me that any suchinquiries were ever made. Given the relief sought by the Applicant/Defendant, it should have led Mr. O’Neil to file a second conciseletter specifically addressing the long delay and security for costs issues. He failed to do so.

Indeed, even the follow-up concise letter thatI permitted him to file following the January 9, 2016, hearing date provides but five paragraphs responding to the issue of long delay.The balance of his supplementary concise letter simply restated the content of his original brief. In my view, the circumstancessurrounding the preparation of Mr.

Madore’s court materials relative to the long delay application involved conduct that unnecessarilylengthened and complicated the proceedings. [26] Second, the Applicant/Defendant refers to the fact that the Respondent/Plaintiff filed certificates of lis pendens against allthree quarter sections of land owned by Ms. Madore, two of which were transferred to Ms. Madore by her Mother days before the date ofseparation. During the January 9, 2016, domestic special application, Mr. O’Neil conceded that there was no good claim under theMatrimonial Property Act to either of these parcels of land. However, Mr.

O’Neil failed to remove these CLP’s notwithstanding thecourt’s urging him to do so, leading Ms. Madore to seek an order from the court on March 23, 2016. In my view, this comes perilously

close to serious misconduct and/or bad faith that might warrant an award of costs against counsel personally. [ 27 ] Third, the Applicant/Defendant suggests that Mr. Madore’s filing for bankruptcy increased the complexity of these proceedings. She also suggests that Mr. Madore’s failure to consent to the severing of the divorce from corollary relief and his failure to attend before the court to set the proper amount of conduct money so as to enable questioning to take place also contributed to both delay and the requirement for Ms.

Madore to incur additional legal costs. [ 28 ] I am not prepared to characterize Mr. Madore’s filing for bankruptcy as an intentional act intended to frustrate legal proceedings. While I appreciate Ms. Madore’s contention that this action had the effect of complicating and delaying this matter, I am not satisfied that it was done in bad faith or with intent to frustrate these proceedings. Under the circumstances, this is not a factor which would support the awarding of enhanced costs. With respect to Mr.

Madore’s alleged failure to consent to, or, indeed, participate in, certain interlocutory applications, I find that he was a reluctant, even elusive, litigant. As such, it is clear to me that Ms. Madore incurred significant legal costs attempting to move this matter forward. I take this into consideration in assessing the claim for enhanced costs. [ 29 ] Next, Ms. Madore points to Mr.

Madore’s actions in filing a statement of defence to counterclaim and an affidavit of records seven months after the filing of the long delay application, and a mere two weeks prior to the date set for the family special application. Relying on the decision of Shelley J. in Huerto v. Canniff , 2014 ABQB 534 , Ms. Madore says that this is conduct justifying an award of elevated costs. I agree. [ 30 ] Next, Ms. Madore points out that she has made numerous attempts to settle this matter with the Respondent/Plaintiff, including the provision of a Calderbank letter on October 15, 2015. Ms.

Madore also points out that throughout the five years of litigation, Mr. Madore never made a single offer to settle and, indeed, failed to respond to most of the various settlement offers advanced by Ms. Madore. [ 31 ] Counsel for Mr. Madore fairly conceded that several Calderbank offers were made and that Ms. Madore did achieve a better result than these offers. As such, he acknowledges that enhanced costs are appropriate from October 15, 2015, onward given the Calderbank offer. This is, accordingly, a factor that I take into consideration in assessing the request for enhanced costs. [ 32 ] Finally, Ms.

Madore points to the fact that she has borne the entire financial burden from the date of separation, both in terms of assuming the entire matrimonial debt and maintaining the matrimonial home, but also in conjunction with playing a very proactive role in terms of trying to move the litigation forward. At the same time, she says that she has not received any child or spousal support and Mr. Madore has contributed nothing to the retirement of any matrimonial debt. [ 33 ] While I am satisfied that Ms.

Madore has borne a disproportionate financial burden throughout this litigation, I am not persuaded that this is an appropriate stand-alone basis upon which I may make an award of enhanced costs. That said, this is the context or background in which this application for dismissal for long delay was heard. As such, I take all of this into consideration in applying the factors set out in Rule 10.33. [ 34 ] Having carefully considered the various factors set out in Rule 10.33, I am satisfied that Ms. Madore is entitled to enhanced costs.

Under the unique circumstances of this case, I accept the contention that triple Column Five costs are appropriate in this instance. While I recognize that directing that the unsuccessful party should pay a multiple of the fees set out in the applicable

schedule is normally reserved for cases that are complex or of significant magnitude, I exercise my discretion to make such an award having regard to the Respondent/Plaintiff’s acts of delay and misconduct during the course of the litigation. The only remaining issue is whether I should direct that some or all of these costs should be paid by counsel personally. Costs Against the Counsel [ 35 ] In addition to requesting enhanced costs, the Applicant/Defendant also seeks costs against Mr. O’Neil personally, pursuant to Rule 10.50.

While conceding that situations justifying an award of costs against counsel are rare, she maintains that this is such a case. [ 36 ] Ms. Madore’s counsel points to the following events during the course of the litigation in support of her request for costs personally against Mr. O’Neil:

a) His failure to follow the terms of Campbell J’s order in that he filed an applicant’s brief rather than the response brief that was clearly contemplated by the order that he endorsed following the June 18, 2016 appearance before Campbell J. Moreover, he failed to file a proper respondent’s brief when given a second opportunity to do so;

b) His failure to withdraw the CLP’s on two parcels of land in relation to which he acknowledged there was no good claim;

c) His failure to agree to attend before a Master to settle the issue of conduct money and his failure to consent to the severing of the divorce from corollary relief;

d) The filing of a Statement of Defence to Counterclaim and Affidavit of Records seven months after Ms. Madore filed her application seeking dismissal of the action for long delay;

e) His “bad faith” in that he agreed to represent Mr. Madore on a contingency fee arrangement after his former counsel ceased to act for non-payment of fees. Ms. Madore contends that Mr. O’Neil’s actions from the outset were motivated by his personal interest in collecting his legal fees and not his client’s best interests or the merits of his client’s legal position;

f) His failure to advance any offer to settle the matter at any stage of the proceedings, together with his failure to respond to many of Ms. Madore’s settlement proposals.

[37] Finally, Ms. Madore’s counsel urges the court to look at the overall fairness of the situation and the financial injury she hassuffered as a result of the actions of Mr. Madore and his counsel in the conduct of this litigation. She says that Ms. Madore is not goingto be able to recover any costs awarded against her former spouse and that I should, accordingly, direct that some or all of the costsshould be paid personally by Mr. O’Neil. [38] Ms. Madore relies on a series of decisions, including Myers v. Elman, [1940] 4 A.C. 282 (H.L.), Young v. Young, (SCC), [1993] 4 SCR 3, Loates v.

Loates, 2000 ABQB 253, and Robertson v. Edmonton (City) Police Service, 2005 ABQB499. [39] In Young, McLachlin J. (as she then was) provided the following guidance relative to the awarding of costs against counsel.At p.135-36, she held: The basic principle on which costs are awarded is as compensation for the successful party, not in order to punish a barrister.

Anymember of the legal profession might be subject to a compensatory order for costs if it is shown that repetitive and irrelevant material,and excessive motions and applications, characterized the proceedings in which they were involved, and that the lawyer acted in badfaith in encouraging this abuse and delay. It is clear that the courts possess jurisdiction to make such an award, often under statute and, inany event, as part of their inherent jurisdiction to control abuse of process and contempt of court...

Moreover, courts must be extremelycautious in awarding costs personally against a lawyer, given the duties upon a lawyer to guard confidentiality of instructions and tobring forward with courage even unpopular causes. A lawyer should not be placed in a situation where his or her fear of an adverse orderof costs may conflict with these fundamental duties of his or her calling. [40] The decision of Slater J. (as he then was) in Robertson is also instructive.

He referred first to the decision in Young, specifically the decision of the British Columbia Court of Appeal [(1990), (BC CA), 75 DLR (4th) 46] ultimatelyendorsed by the Supreme Court. At para. 18, he stated: The Supreme Court endorsed the more detailed reasons of the British Columbia Court of Appeal on this topic (citations omitted) atparas. 81-101. That court made the following points:

a) An award of costs should not be made against a solicitor personally on the ground that proceedings brought on behalf of a clientlack merit until it is beyond doubt not only that the proceedings are devoid of merit, and that the solicitor knew or ought to have knownthem to be so, but also that the responsibility for continuing with the proceedings despite their lack of merit lies with the solicitor, ratherthan the client.

b) Counsel bears the responsibility for determining what evidence should be adduced to advance his client’s cause. In doing socounsel must be allowed some latitude.

c) A solicitor ought not to be ordered to pay solicitor-and-client costs where is conduct is merely the produce of excessive zeal, andthe production of material not strictly necessary for the court’s decision is not grounds for an award of solicitor-and-client costs againsthim.

d) An aware of costs should not be made against a solicitor personally on the ground that an excessive number of interlocutoryproceedings were brought, unless responsibility for them lies with the solicitor, rather than the client. [41] After reviewing a series of cases in which an award of costs against counsel were made, Slater J. concluded (at para. 21): It is apparent from the case law that there must be some finding of positive misconduct by counsel before costs will be awarded againsthim personally. It is not enough that the action was unsuccessful.

It is not enough that the client advance unmeritorious claims, orinstructed counsel to pursue the matter in an undesirable way. Nor is it sufficient that counsel did not act in an exemplary fashion. Amere error of judgment, or even negligence, is not enough. Obviously, legitimate tactical decisions by counsel on the conduct oflitigation do not justify personal costs awards. The conduct of the barrister must demonstrate or approach bad faith, or deliberatemisconduct, or patently unjustified actions, although a formal finding of contempt is not needed: Shum v. Mitchell, 2000 ABQB 323 atpara. 15; Brown v.

Silvera, 2004 ABQB 527, at para. 32. [42] In her oral submissions to the court, counsel for Ms. Madore placed particular emphasis on the following passage from Elman(at pp. 488-89): Misconduct or default or negligence in the course of the proceedings is in some cases sufficient to justify an order [requiring a solicitor topay the costs of proceedings]. The primary object of the court is, not to punish the solicitor, but to protect the client who has suffered andto indemnify the party who has been injured (emphasis added). [43] Ms.

Madore is, in my view, asking the court to find that injury to a party affords an independent basis upon which to awardcosts against counsel as long as the objective is not to punish that counsel. In effect, Ms. Madore is saying: “I’ve been injured as a resultof this litigation and I am entitled to have my costs covered by opposing counsel given the virtual certainty that I will be unable torecover from the other party”. With respect, I disagree that this is a proper

interpretation of Elman. I am satisfied that what the court issaying in Elman is that the rationale for awarding costs against a lawyer as a result of misconduct or negligence is not to punish thelawyer, but to indemnify an injured party. To the extent that counsel for the Applicant/Defendant is suggesting that indemnification of aninjured party is an alternative basis upon which to award costs against the lawyer – in addition to circumstances of misconduct – Irespectfully disagree.

In my view, there must be a finding of misconduct on the part of counsel to justify this extraordinary award ofcosts. [44] While I have serious concerns about the actions of the Respondent/Plaintiff, I am not satisfied that there is a properevidentiary basis for me to find bad faith or deliberate misconduct on the part of Mr. O’Neil in this instance. What the evidence doesreveal is that Mr. Madore was a somewhat reluctant, even uncooperative, litigant notwithstanding that he initiated this claim.

[ 45 ] On the evidence before me, it is simply not possible for me to determine whether the actions that I have found led to delay in the prosecution of the action were decisions taken by Mr. O’Neil alone or the result of instructions provided to him by Mr. Madore. I have similar difficulty in in determining whether any of the acts of misconduct described above flowed from the actions of Mr. O’Neil alone or as a result of instructions provided by Mr. Madore. Having said that, I acknowledge the merit in Ms.

Madore’s contention that counsel, generally, “manage” the conduct of the litigation process without seeking specific instructions from a client relative to every step or action taken. [ 46 ] With respect to Ms. Madore’s reliance on Mr. O’Neil’s failure to follow the terms of the Campbell J. order of June 18, 2016, I am not prepared to find that this amounted to serious misconduct or bad faith on the part of counsel. Similarly, I am not prepared to find serious misconduct or bad faith on the part of Mr.

O’Neil relative to the filing and maintenance of the certificates of lis pendens on two of the three properties despite an acknowledgment that there was no good claim under the Matrimonial Property Act . [ 47 ] Ms. Madore also advances an argument that costs should be awarded against Mr. O’Neil given his financial self-interest in pursuing this litigation as a result of the contingency fee arrangement that had been negotiated with Mr. Madore. As I understand this particular argument, Ms. Madore is, in effect, saying that Mr.

O’Neil continued to pursue a meritless claim in order to be paid for his work on the file. [ 48 ] While there is some evidence before me that would support a finding that a contingency fee agreement was in place in this instance, I am not prepared to draw the sweeping inference that Mr. O’Neil’s conduct of the file was driven by self-interest, as opposed to his professional assessment of the merits of the claim and the instructions of his client. There is simply no evidence before me to support the drawing of such an inference.

Moreover, this argument would seem to open the door to a challenge to every contingency fee agreement on the basis that the lawyer’s financial self-interest in being paid for his or her work invariably displaces the lawyer’s legal and ethical obligations to the client, the legal profession, and the public. Before concluding, I would observe that there is much merit to Ms. Madore’s claim for enhanced legal costs in this instance. My award of costs confirms this fact. However, the determination of the appropriate level of costs must be calculated on a principled basis and not on the basis of sympathy.

Conclusion [ 49 ] Costs are awarded in accordance with

Schedule C, Column 5. Double costs are awarded from October 15, 2015 onward. Triple costs are awarded from June 18, 2016 onward. The application for the awarding of costs against Mr. O’Neil personally is denied. [ 50 ] Counsel are strongly encouraged to resolve any dispute that may remain between the parties relative to the content of the Bill of Costs submitted by counsel for Ms. Madore. Heard on t he 23 rd of March, 2016 and continued on January 9, 2017, and May 8, 2017. Dated at the City of Calgary, Alberta this 20 th day of June, 2017 . M. David Gates J.C.Q.B.A. Appearances: Mr. G. Price for the Plaintiff/Respondent Ms. L. G. Stephen for the Defendant/Applicant