Remington Development Corporation v Enmax Power Corporation, 2019 ABQB 901

Court of Queen’s Bench of Alberta Citation: Remington Development Corporation v Enmax Power Corporation, 2019 ABQB 901 Date: 20191126 Docket: 0801 14506 Registry: Calgary Between: Remington Development Corporation Plaintiff - and - Enmax Power Corporation Defendants _______________________________________________________ Endorsement Regarding Costs of A.R.

Robertson , Q.C., Master in Chambers _______________________________________________________ [ 1 ] In my decision in this matter dated October 1, 2019, reported at 2019 ABQB 754 , in paragraph 29 , I said, “If the parties cannot agree on costs, they may arrange to speak to the Court.” [ 2 ] The parties have been unable to agree on costs, and have asked for my ruling. [ 3 ] It is well-known that the default rule (rule 10.29) is that the successful party to an application brought on notice is entitled a costs award against the unsuccessful party payable forthwith, subject to the Court’s general discretion, the assessment officer’s discretion under rule 10.41 as to whether costs are “reasonable and proper costs”, and rules governing who is to pay costs in particular circumstances. [ 4 ] A difficulty that the courts have when giving reserved, written, decisions, is that we are unaware of prior discussions or specific factors that may affect the Court’s exercise of its discretion costs, such as whether there has been a Calderbank offer (as in Calderbank v Calderbank , [1975] 3 All ER 333 ), and sometimes the successful party has good reasons to ask for costs awarded at a level higher than set out in

schedule C of the Alberta Rules of Court . Additionally, the unsuccessful litigant might have an intention to appeal, a reasonable ground of appeal, and limited means to pay the costs, or the successful litigant may be unlikely to repay costs if the decision is reversed on appeal. It is not desirable to hear submissions on costs before the Court has made its decision on the merits.

[5] Accordingly, in reserved decisions I frequently leave it to the parties to try to agree upon costs, as I did here. [6] There has been no Calderbank offer, or any circumstance put forward seeking elevated costs. [7] Enmax was successful in the application, and simply seeks costs “payable forthwith and in any event of the cause.” This issimply the same as a simple award of “costs”, because unless the Court states otherwise, costs are always payable forthwith: AlbertaRules of Court, rule 10.29(1), Justik v Brosseau, 1979 AltaSCAD 9, 9 Alta.

L.R. (2d) 89, Anderson Preece & Associates Inc vDominium Appraisal Group Inc, 2000 ABQB 979 and Woldemichael v. Gallant, (AB QB). [8] Here, Remington does not oppose an award of costs to Enmax, but asks that costs be set at $2,000 plus reasonabledisbursements “payable at the end of the case”, for three reasons: 1. Remington was successful in the first part of the bifurcated case (this was not the application before me) and it is going to be awardedcompensation for Enmax’s unauthorized use of its land by the Surface Rights Board, the Court or both. 2.

Remington is going to appeal my decision and it may therefore be overturned, and reference is made to Strategic Acquisition Corp vMultus Investment Corporation, 2017 ABQB 297, at paragraph 65, reversed on other grounds at 2018 ABCA 63. 3. The Court has broad discretion regarding costs. [9] The first ground addresses other applications before other courts or the ASRB, and has no bearing on the application thatwas before me. [10] The second ground suggests that in circumstances where there may be an appeal costs may be directed to be paid only at theconclusion of the appeal, as in Strategic Acquisition.

However, Enmax will be well able to reimburse costs if costs are reversed onappeal. This is not the case of a successful but impoverished litigant. [11] As to discretion, I see no reason to depart from the default position. An interlocutory application was brought, and it waswholly unsuccessful. Alberta is generally a “pay as you go” jurisdiction, subject to specific circumstances and discretion, and there is noreason to exercise discretion to vary from that default approach. [12] Accordingly, I have signed the form of order presented by counsel for Enmax.

Dated at the City of Calgary, Alberta this 26th day of November, 2019. A.R. Robertson, Q.C. M.C.C.Q.B.A. Appearances: Grant Vogeli, Q.C. and Kyle T. Gardiner Lawson Lundell LLP for the Applicant (Plaintiff) Michael O'Brien Blake Cassels & Graydon LLP for the Respondent (Defendant) Enmax Power Corporation