1131102 Alberta Ltd Plaintiff - v. -, 2017 ABQB 751

Court of Queen’s Bench of Alberta Citation: 1131102 Alberta Ltd v Castledowns Law Office Management, 2017 ABQB 751 Date: 20171206 Docket: 1003 18670 Registry: Edmonton Between: 1131102 Alberta Ltd Plaintiff - and - Castledowns Law Office Management Defendant _______________________________________________________ Reasons for Decision of S.L. Schulz , Master, Court of Queen's Bench of Alberta _______________________________________________________ [ 1 ] The Defendant applies for

Summary Dismissal of this action based on the principles of res judicata , issue estoppel and collateral attack arising out of a decision of the Court of Appeal reported as Castledowns Law Office Management Ltd v FastTrack Technologies Inc , 2009 ABCA 148 (“ Castledowns Appeal Decision ”). [ 2 ] For the reasons that follow, I dismiss the application. Background [ 3 ] This application arises out of the purchase and sale transaction of some commercial property. The vendor was 1131102 Alberta Ltd, the Plaintiff/Respondent in this application.

There were two potential purchasers, FastTrack Technologies Inc (“FastTrack”) and Castledowns Law Office Management (“Castledowns”), the Defendant/Applicant in this application. [ 4 ] A disagreement arose as to which of the two potential purchasers were entitled to purchase the property. [ 5 ] At trial, Justice Gill addressed the competing claims for specific performance advanced by the two potential purchasers.

In his decision on June 13, 2007, Justice Gill concluded there was a valid contract between Castledowns and 1131102 Alberta Ltd and ordered specific performance in favour of Castledowns. [ 6 ] On September 19, 2007, Justice Gill gave his decision on costs. He awarded “solicitor client costs on a full indemnity basis” to Castledowns to be paid by 1131102 Alberta Ltd. He based his costs decision on the wording in the contract between Castledowns and

1131102 Alberta Ltd (Transcript of Costs Decision, Exhibit “E” to the Affidavit of Anthony Holinski, sworn July 20, 2016 at page 1, line 41; page 2 lines 1- 5; page 4 lines 2-20). [ 7 ] FastTrack appealed the June 13, 2007 decision and the appeal proceeded between FastTrack and Castledowns. 1131102 Alberta Ltd did not participate in the appeal. ( Castledowns Appeal Decision , para 47 ). [ 8 ] The Court of Appeal concluded that the agreement between Castledowns and 1131102 Alberta Ltd to sell the property to Castledowns had been terminated on its own terms on September 15, 2007.

The Court of Appeal set aside the trial award of specific performance to Castledowns, and remitted the matter back to the Court of Queen’s Bench “for the resolution of any outstanding issues that flow from this result”. Castledowns Appeal Decision , para 5-6, 43-44, and 48 ; Leave to Appeal to the Supreme Court of Canada dismissed). [ 9 ] This action was brought by 1131102 Alberta Ltd to claim the legal costs and other adjustments as ordered by Justice Gill. Castledowns applies to summarily dismiss this action. Positions of the Parties [ 10 ] Castledowns seeks

summary dismissal of this action. It takes the position that the Costs Order Justice Gill granted on September 19, 2007 was not appealed and should have been appealed if 1131102 Alberta Ltd objected to the costs ordered. This action, brought by 1131102 Alberta Ltd, is attempting to re-litigate the issue of costs which is now res judicata and not subject to review. [ 11 ] 1131102 Alberta Ltd takes the position that the Court of Appeal remitted the issue of costs and adjustments back to Queen’s Bench for resolution.

The trial costs awarded were based on the wording of the contract, but since the Court of Appeal found that the contract was terminated, one of the outstanding issues referred back to the Court of Queen’s Bench was the costs and adjustments award. The non-participation of 1131102 Alberta Ltd in the appeal does not affect this. Analysis [ 12 ] The costs awarded by Justice Gill on September 9, 2007 flow from the trial. Although the decision was delivered on a different day than the substantive trial decision, it is part of that trial process.

It is not unusual, for many different reasons, for a cost decision to be delivered at a date subsequent to the actual trial. It is still part of the trial decision. [ 13 ] The trial decision was appealed. [ 14 ] Although the Court of Appeal did not directly address the costs awarded at trial, it made a crucial finding: the contract between Castledowns and 1131102 Alberta Ltd was terminated on its own terms on September 15, 2007. [ 15 ] The setting aside of specific performance flowed from the termination found by the Court of Appeal.

The trial award of costs was based on the contract which the Court of Appeal determined had been terminated. Accordingly, the issue of costs was an outstanding issue flowing from the decision of the Court of Appeal. The Court of Appeal asked the Court of Queen’s Bench to review the outstanding issues. [ 16 ] Res judicata does not apply. Conclusion [ 17 ]

Summary Dismissal is not granted. In accordance with the direction of the Court of Appeal, the Court of Queen’s Bench must adjudicate whether or not 1131102 Alberta Ltd is entitled to be reimbursed for the amounts claimed in light of the decision of the Court of Appeal. [ 18 ] The taxable costs of this application are awarded to the Respondent, 1131102 Alberta Ltd, to be assessed if they cannot be agreed upon. Heard on the 22 nd day of November, 2017. Dated at the City of Edmonton, Alberta this 6 th day of December, 2017 . S.L. Schulz M.C.Q.B.A.

Appearances: Elizabeth M. MacInnis, Q.C. Weir Bowen LLP for the Plaintiff Murray L. Engelking Engelking Wood for the Defendant