Oommen v Capital Regional Housing Corporation, 2017 ABQB 56

Court of Queen ’ s Bench of Alberta Citation: Oommen v Capital Regional Housing Corporation, 2017 ABQB 56 Date: 20170126 Docket: 0903 03854 Registry: Edmonton Between: Paul Oommen Plaintiff - and - Capital Regional Housing Corporation and Jeff Doe Defendants _______________________________________________________ Endorsement Decision of the Honourable Madam Justice J.B.

Veit _______________________________________________________ [ 1 ] Having been successful on their application to enter an order even though more than three months had passed from the date of the decision on which the order was issued, the defendants are entitled to Column 2 costs for the contested, no briefs, hearings on October 7 and November 30, 2016. On that application, Capital Regional Housing Corporation is therefore entitled to a total of $1,500.00 in costs from Mr. Oommen. [ 2 ] Having been successful in resisting Mr. Oommen’s claim for contempt, Mr.

Neal is personally entitled to costs of the November 30, 2016, hearing. On January 11, 2017, there was a hearing to determine the amount of costs that should be awarded for the successful contempt hearing. The

Schedule C column for contempt applications is Column 1, whether one considers the major objective of the substantive hearing the non-monetary issue of the existence of contempt or, in the circumstances here, the requested financial penalty for contempt. Costs for the contested, no briefs hearing on November 30, 2016 would therefore be $500.00 based on

Schedule C. However, Mr. Neal asks for an increased costs award. The court must therefore review the nature of Mr. Oommen’s contempt application. As the written decision on the contempt application states, although Mr. Oommen used judgmental expressions such as

“wilful deceit” and ‘wilful default” in his various affidavits and at the hearing, at its core Mr. Oommen’s application for contempt was based on the fact that Mr. Neal did not comply with Rules 9.2(2)(

a) and 9.5(2). It was true, of course, that Mr. Neal had not complied with those rules; however, as the court’s decision indicated, such non-compliance does not constitute contempt. [ 3 ] Mr. Neal advances two main arguments in favour of an award of increased costs. First, he states that: Mr. Oommen had asked for triple costs and that, if Mr. Oommen thought that type of award was appropriate in his favour, that is the kind of award the court should make against Mr. Oommen. [ 4 ] Second, Mr.

Neal states that case law such as Buchanan v Lamoureux 2011 ABQB 256 establishes that even self- represented litigants may be required to pay accelerated costs if they do not prove allegations of impropriety. Parenthetically, one notes that, while Rule 1.1(2) states that ‘These rules also govern all persons who come to the Court for resolution of a claim, whether the person is a self-represented litigant or is represented by a lawyer”, that Rule does not come directly into play on this application because there is no Rule which Mr. Oommen must follow.

More pertinently, it must also be noted that, in the Provincial Court decision mentioned in paragraph 13 of Buchanan , Fradsham PCJ was referring to “allegations of morally reprehensible conduct”. The allegations in the Buchanan matter were of dishonesty. Here, the allegations against Mr. Neal were not that he had committed perjury or fraud or even professional negligence: Mr. Oommen’s claim was that Mr. Neal had, without excuse, not followed Rules 9.2 and 9.5. Such an allegation is not of the same nature as one of morally reprehensible conduct.

Moreover, the self-represented litigant in Buchanan had a law degree although he was not a practising lawyer; Mr. Oommen has no professional qualifications and certainly no professional legal training. I cannot accept Mr. Neal’s view that his professional reputation may have been harmed by Mr. Oommen’s allegations; the very fact that the Rules themselves authorize the extension of the time limits in Rules 9.2 and 9.5 together with the large numbers of actual applications for relief from those Rules, establish that failure to comply with those Rules is an everyday occurrence. While Mr.

Oommen’s allegations in extravagant language are on the public record, so is the Court’s decision dismissing those allegations. Finally, it must be noted that there was a bona fide offer of settlement in Buchanan which also affected the costs award but which has no application here. In

summary on this point, the situation here is distinguishable from that in Buchanan . [ 5 ] Although the court does not accept Mr. Neal’s arguments about the severity of Mr. Oommen’s conduct, the court does not countenance Mr. Oommen’s typical use of excessively dramatic language to describe Mr. Neal’s conduct. Mr. Oommen must learn to choose words in accord with what Mr. Neal has actually done, i.e. give him short notice, didn’t comply with a Rule, ask for more than party and party costs, etc., rather than peppering his submissions with words such as “deceit”. [ 6 ] In all the circumstances, I order Mr.

Oommen to pay costs to Mr. Neal of $750.00. [ 7 ] As to the timing of the payment of costs, Mr. Oommen asks that I now do what I did in the past in relation to the payment of a fine by Mr. Oommen for his contempt of a court order, i,e, order that the fine and costs be paid or accounted for at the conclusion of the substantive proceedings. For ease of reference, I reproduce here part of the decision I issued in 2016 ABQB 283 : 50 However, I have no evidence, and little information, about Mr. Oommen's ability to pay a fine.

The only information I have is that contained at p. 24 of the transcript of the hearing before the Master where the Master awards costs against Mr. Oommen, payable in any event of the cause, but payable only at the conclusion of the proceedings. What can be inferred from the Master's treatment of costs is that an order for costs which required Mr. Oommen to pay forthwith may deprive Mr. Oommen of the ability to carry on with the lawsuit. 51 As to the range of fines imposed for contempt of the kind shown by Mr.

Oommen, the cases mentioned by the applicant are, with respect, not useful because the factual circumstances here are so different from the fact situations in those decisions. In the absence of any range of fines imposed on persons in Mr. Oommen's circumstances who have committed similar contempts, I conclude that a modest fine is one which somewhat exceeds the cost of a contested application. 52 Based on the only information available to the court, which suggests that Mr.

Oommen has limited means, the fine should be greater than the cost of a contested hearing, but should not be as great as would be appropriate if the plaintiff were a man of means. Also, because Mr. Oommen apparently has limited means and because an application for

summary judgment in favour of the defence has previously been denied by the Master, the usual requirement that fines and costs be paid before any new step can be taken in the proceedings is not appropriate here. The fine will be paid by Mr. Oommen to CHRC in any event of the cause, but is only required to be paid or accounted for at the conclusion of the proceedings. [ 8 ] On this application, there is no basis on which to depart from the costs approach which I took in the first of my decisions in this matter.

I note, however, that there may well be a time when the issue of the payment of costs will have to be re-addressed either because information becomes known about Mr. Oommen’s financial means or because the total amount of costs incurred by Mr. Oommen in the litigation appears to be out of proportion to the potential recovery in the litigation. In the result, the award of $1,500.00 in costs to Capital Regional Housing Corporation is to be paid in any event of the cause, but will only be paid or accounted for at the conclusion of the substantive proceedings. [ 9 ] However, the costs award to Mr.

Neal is personal; although it arose out of the predicate proceedings, it is against an individual who is not a party to those proceedings and has no particular effect on those proceedings. Therefore, the costs award to Mr. Neal must be paid by Mr. Oommen forthwith. Heard on the 11 th day of January, 2017. Dated at the City of Edmonton, Alberta this 25 th day of January, 2017.

J.B. Veit J.C.Q.B.A. Appearances: Colin C. Neal, Brownlee LLP for the Defendants Paul Oommen, on his own behalf