Beazer v Tollestrup, 2018 ABQB 1046

Court of Queen’s Bench of Alberta Citation: Beazer v Tollestrup, 2018 ABQB 1046 Date: 20181220 Docket: 1006 00192, 1006 01042 Registry: Lethbridge Between: Action No. 1006 00192 Harry D. Beazer, Marion I. Beazer and Leonard L. Jensen Plaintiffs - and - James Tollestrup, Litigation Representative for the Estate of Carol Mary Tollestrup Defendant - and - Mark A. Baldry Third Party And Between: Action No. 1006 01042 James Tollestrup, Litigation Representative for the Estate of Carol Mary Tollestrup Plaintiff

- and - Harry D. Beazer, Marion I. Beazer and Leonard L. Jensen and Mark Baldry Defendants _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice J.H. Langston _______________________________________________________ [ 1 ] This is an application to set the costs flowing from a lengthy and contentious litigation process. [ 2 ] Following release of a written decision at the conclusion of the trial, the parties have been unable to agree on the matter of costs. Prior to that issue coming before this Court, an appeal of the decision was launched.

The decision was upheld, except for a narrowly defined issue relating to the manner in which Mr. Baldry drafted the mortgage documents. The Court of Appeal directed a determination of what damages flowed from Mr. Baldry’s actions. Accordingly, I must deal with the matter of costs in relation to the outcome to the trial generally and more specifically in relation to Mr. Baldry’s conduct. [ 3 ] The moment Carol Tollestrup entered Mr. Baldry’s office an explosive chain reaction began, which resulted in the creation of an expanding universe of legal actions.

The action which was before me at trial, and the current costs application, is the legal equivalent of that well known scientific theory --- The Big Bang. The drafting error on the mortgages was the result of Mr. Baldry blindly following a precedent. The Court of Appeal found, in the circumstances, that he was negligent. Counsel for the estate suggests that this negligence resulted in damages by way of increased costs in an amount exceeding $900,000.00. Despite the vigor of this argument I am unable to agree with this position. In fact, I can find little basis to support a conclusion that Mr.

Baldry’s actions resulted in any loss to the estate or anyone else. The wording of the mortgages was known to the parties prior to the trial. It came as no surprise to the estate. In fact, the estate raised it as a preliminary issue in an effort to defeat the plaintiffs’ claims. After hearing evidence the mortgages were rectified to accord with the intention of the parties. This drafting error was not the primary focus of the allegations against Mr. Baldry by the estate. With or without this issue coming to light, the estate’s allegations went far beyond simple clerical error.

The trial would have continued unabated. Mr. Baldry’s negligence did not protract the trial, nor the preparation for the trial. It did not shift the primary focus of the estate as to its main complaint, which was that Mr. Baldry had failed in his duty to properly represent Carol Tollestrup. The drafting error was but a side issue. [ 4 ] Having had some small success in the Court of Appeal, the estate is now trying to acquire a better target. Mr. Baldry was overwhelmingly successful in repudiating the majority of allegations made about his conduct.

If there were costs attributable to him, by way of damages, they would be more than offset by way of the costs he should be awarded for his success. In the result no costs or damages are to be awarded against Mr. Baldry. In keeping with the finest tradition of the bar, and advocacy in general, counsel for Mr. Baldry does not seek costs. As between the estate and Mr. Baldry each shall bear their own costs. As between the plaintiffs and Mr. Baldry, each shall bear their own costs. The plaintiffs seek costs associated with the foreclosure applications. They are the successful parties and are entitled to their costs.

However, they are not entitled to solicitor client costs as contemplated by the mortgages. When the parties attended on Mr. Baldry, the agreement they reached contemplated that Carol Tollestrup’s debt to the plaintiffs was to be satisfied in one of two ways: the sale of her property, or by the terms of her Will upon her death. No one entered into this agreement with the expectation that the plaintiffs could immediately or unilaterally make a demand on the mortgages, the result of which would be that Carol Tollestrup would be evicted from her own home. However, that is exactly what the plaintiffs attempted to do.

As the relationship between the parties began to sour, the plaintiffs took the pre-emptive step of trying to enforce the debt obligations, which Carol Tollestrup herself had created for their benefit. The conduct of the litigation from that point forward is a testament as to why the forests are dying. The clerk’s office has thirty-five files representing ten storage boxes of materials relating to this epic battle. Much of this paper appears to be wasted on peripheral issues, but nonetheless volley was matched by volley.

It would be easy to dismiss some of the applications, were it not for the apparent orchestration of events which unfolded during the litigation. As an example Karen, Carol’s sister, discharged a mortgage which she held on Carol’s property. However, after the plaintiffs purchased the first, unrelated, mortgage which was held on the property, Karen’s “discharged mortgage” is somehow tacked onto the prior mortgage. When the estate queried this process, which was negotiated by the plaintiffs’’ lawyer, their attempts at disclosure were met with a form of guerrilla warfare.

While the estate suggested that Karen’s evidence at trial was suspect because of this transaction, nothing turned on that point. It does, however, illustrate what I conclude to be an unruly form of litigation. This was, despite the efforts of counsel, not the trial of the century. Its primary elements were obscured by a litigation mentality gone wild. [ 5 ] The plaintiffs will have their costs on a party and party basis. The plaintiffs seek costs against James Tollestrup, who is the litigation representative for the estate.

The basis for this position is that he, by filing a Counterclaim, protracted the process and is therefore responsible for the shortfall in recovery of costs.

[ 6 ] I reject this argument. Mr. Tollestrup defended against the plaintiffs’ actions. [ 7 ] His actions as an initiator of a Claim were little more than a rearticulation of the defence filed on behalf of the estate. His actions did nothing to accelerate this runaway snowball. [ 8 ] In the result, the plaintiffs will have costs against the estate on a party and party basis. In any event there will be judgment on their claim in the amount of $550,000.00 plus interest at 5% calculated from the date of Carol Tollestrup’s death.

If there is a dispute as to those costs, the parties are directed to an assessment officer for determination of those costs. Heard on the 17 th day of December, 2018. Dated at the City of Lethbridge, Alberta this 20 th day of December, 2018. J.H. Langston J.C.Q.B.A. Appearances: Peter W.K. Ridout, Ridout Baron for Harry D. Beazer, Marion I. Beazer and Leonard L. Jensen Ken Staroszik, Q.C., Wilson Laycraft for James Tollestrup, Litigation Representative for the Estate of Carol Mary Tollestrup Edward W. Halt, Q.C., Peacock Linder Halt and Mack LLP for Mark A. Baldry