Beaudin v Forget, 2020 ABQB 770

Court of Queen’s Bench of Alberta Citation: Beaudin v Forget, 2020 ABQB 270 Date: 20201210 Docket: FL04 02636 Registry: Edmonton Between: Marie Denise Beaudin Plaintiff - and - Robert Real Forget Defendant _______________________________________________________ Endorsement of the Honourable Mr. Justice M. J. Lema _______________________________________________________ A. Introduction [ 1 ] The parties disagree on the particulars of a costs award I made in 2020 ABQB 286 , where I largely found in favour of Mr. Forget and accordingly awarded him costs (para 89).

[ 2 ] The parties disagree about: 1. the appropriate column (3, per Mr. Forget; 1, per Ms. Beaudin); 2. whether costs were awarded for the entire proceeding (Mr. Forget’s view) versus the trial only (Ms. Beaudin’s); 3. whether certain costs items claimed by Mr. Forget should be included; 4. the impact of certain personal property awarded to or retained by Ms. Beaudin (no impact, per Mr. Forget); and 5. whether Ms. Beaudin’s recovery at trial was worse than that offered by Mr.

Forget (via formal offer), in which case double costs for post-offer steps applies, versus better than that offer (no doubling). [ 3 ] I find that Column 3 is applicable, that costs were awarded for the entire proceeding, that all the cost items claimed are appropriate, that the personal-property aspect has no bearing here, that Ms. Beaudin did not beat the formal offer and that, accordingly, doubling of the identified items is warranted. B. Analysis 1. What is the appropriate column? [ 4 ] The main event in this lawsuit was entitlement to the net sale proceeds of Mr. Forget’s residence (approximately $518,000).

Ms. Beaudin sued under unjust-enrichment principles for a one-half interest in it and the balance of Mr. Forget’s property. [ 5 ] For present purposes, I will set the other property to the side. (Including it would only confirm the applicable column or indicate a higher column.) [ 6 ] If Ms. Beaudin had succeeded in her house claim, she would have received approximately $260,000. [ 7 ] Subsection 1(3) of Division 1 of

Schedule C (“Framework”) tells us which column applies to a given matter:

(3) Subject to subrule (4) [not applicable here], the dollar range [for each costs column] indicates the amount recoverable (

a) as against the plaintiff, with reference to the amount claimed by the plaintiff , (

b) as against the defendant, with reference to the amount of the judgment or order against the defendant, or (

c) in the case of an interlocutory application, as against the person liable to pay the costs with reference to the amount claimed by the plaintiff. [ 8 ] In this case, Ms. Beaudin was the plaintiff. The amount she claimed was (at minimum) $260,000. With column 1 covering claims up to and including $75,000, column 2 covering claims from $75,000 up to and including $200,000, and column 3 claims from there up to and including $675,000, it is clear that column 3 applies. 2.

Were costs awarded for the entire proceeding or the trial only? [ 9 ] Here is the costs award from the judgment (para 89): I award costs to Mr. [Forget], given that he carried the day on the large majority of the key issues [at trial, summarized in the balance of the paragraph]. [ 10 ] Ms. Beaudin initially argued that that award was “trial only”, but she later conceded that it was “entire action.” 3. Is Mr . Forget entitled to cost items 5(1), (2) and (3) and 7(1) of

Schedule C? [ 11 ] As reflected in the draft bill of costs prepared by Mr. Forget, these items (with amounts per column 3) are as follows: 5(1) Preparation for questioning under

Part 5 (once per action: the equivalent of a ½ day attendance fee under Item 5(2) -- $1,000; 5(2): First ½ day or portion of it for attendance for questioning under

Part 5 of parties of witnesses or cross-examination on an affidavit -- $1,000; 5(3) Each additional ½ day -- $1,000 [three such ½ days claimed] 7(1) Contested applications -- $1,000 [one application – October 24, 2018] [ 12 ] Ms. Beaudin argued that: [These] items should be excluded from the bill of costs. I agree that in some cases these items do form part of the normal costs award; however, in the present case, I believe these items were necessary steps in these proceedings in order to bring this matter to a conclusion. These steps in the litigation were done largely by agreement and with the understanding that each party was going to be paying for their

own costs. I believe it is only reasonable that in the present case these items be removed because they were a necessary part of this litigation for both of the parties. [ 13 ] Mr. Forget responded: It is our position that costs were awarded for the entirety of the proceedings which includes all steps taken during the litigation. [Ms. Beaudin’s] claim that certain items were necessary and were done by agreement does not detract from the fact that these steps were completed.

It could very well be argued that all of the steps in the litigation were necessary to bring it to a conclusion, [but] this does not change the fact that these steps took place and the parties incurred costs for same. While questioning did proceed by agreement so that no conduct funds were payable by either party, there was, however, no agreement that the parties would bear their own costs for this step upon conclusion of this matter. [ 14 ] I agree with Mr. Forget: • Ms.

Beaudin did not cite any authority for the proposition that “necessary steps” are excluded from an entire-action costs award drawing no distinction among applicable

Schedule C items (as here); • neither did she did provide any evidence of the asserted “bear own costs for such steps” agreement; • that the parties were able (apparently) to

schedule and carry out these steps by agreement is laudable and to be encouraged. But that has no bearing, at the end of the day, on whether the costs items associated with those steps are engaged; and • with no other reasons put forward for non-engagement of these items (e.g. four half-days were not actually required for questioning), I see no reason to factor out any of these items. 4. What is the impact of personal property retained or effectively credited to Ms . Beaudin? [ 15 ] Ms. Beaudin argued: … the value of the property under [a miscellaneous chattels] preservation order was a minimum of $40,000.

By taking this amount into consideration along with what was ordered [in 2020 ABQB 286 ], the amount received by [me] is higher than what was offered by Mr. Forget in the formal offer to settle. Accordingly, he should not be entitled to double costs. [ 16 ] Mr. Forget replied: … the property items included in the preservation order were of nominal value as they were all old, used items. [Ms. Beaudin’s] evaluation of “at minimum $40,000” is not accurate, and she provides no supporting information for this assertion. Furthermore, a number of these items were included in [the 2020 ABQB 286 ] decision, and Ms.

Beaudin received a credit for them in the total amount awarded. [ 17 ] The main decision did not explicitly address the preservation order. The only chattels I addressed (entitlement-wise) were those described in paragraph 76, specifically, a Kubota tractor (award: $2,000 to each party); a Titan truck (Ms. Beaudin to pay Mr. Forget $5,000); and a washer/dryer set, treadmill, and elliptical unit (Mr. Forget to pay Ms. Beaudin $2,500 for collective set). The net effect of these back-and-forth awards was a $500 credit in Mr.

Forget’s favour. [ 18 ] I did refer to “miscellaneous personal assets”, described as still held by Mr. Forget and held in storage somewhere. My directions were that the parties divide these remaining assets among themselves and that, if they could not agree by May 15, 2020, they could outline their respective claims and I would decide how to allocate them. [ 19 ] I did not hear from the parties by that deadline (or at all). Accordingly, I assume that they divided those assets to their satisfaction or that Ms.

Beaudin abandoned her claim to them. [ 20 ] Accordingly, with the main judgment not addressing entitlement to these latter assets, they do not enter into the costs analysis. Even if Ms. Beaudin had identified the assets preserved by that order and substantiated the asserted value of $40,000, that would represent the outcome of the preservation-order proceeding itself and, by definition, fall outside the scope of the trial itself and the other (pre-trial) steps identified in the bill of costs. (If I have misunderstood this aspect e.g. if the application for which Mr.

Forget is seeking costs (as part of the overall costs award) yielded the preservation order, I will make any necessary adjustments to this costs decision.) [ 21 ] As I see it, with the main judgment addressing entitlement to relatively nominal chattels (as outlined above) and making no other chattels-related decision, the preservation order is a red herring here. 5. Is Mr . Forget entitled to double costs? [ 22 ] He made a formal offer to settle, on these terms: 1. $60,000 (to Ms. Beaudin) out of the net sale proceeds of Mr.

Forget’s home; 2. each party to retain their own investments and bank accounts; 3. each party to be responsible for his or her own liabilities as incurred in his or her own name;

4. Ms. Beaudin to retain her LAPP pension; and 5. each party to bear his or her own costs. [ 23 ] Per the judgment: 1. Ms. Beaudin was awarded $28,200 out of the house proceeds; 2. each party ended up retaining their own investments and bank accounts; 3. each party ended up being responsible for his or her own liabilities (i.e. incurred in his or her own name); 4. Ms. Beaudin ended up retaining her LAPP pension; and 5. Mr. Forget was awarded costs. [ 24 ] The judgment addressed one issue not addressed by the offer, namely, the existence and quantum of a debt owned by Mr. Forget to Ms.

Beaudin ($13,600). [ 25 ] With the offer not addressing that loan, Ms. Beaudin could have accepted the $60,000 offer and still pursued recovery of that loan i.e. she could have come away with $73,600. [ 26 ] In any case, with that loan not forming part of the offer, I leave it to the side in gauging (via the offer’s terms) whether double costs are appropriate. [ 27 ] Comparing the offer’s terms and the judgment’s outcome, it is plain that Ms. Beaudin did not beat the offer.

Again, all aside from the personal-loan and chattels aspects, accepting the offer would have put her in a much better position (by about $30,000) than her judgment recovery. [ 28 ] Ms. Beaudin did not argue that Mr. Forget’s double-costs calculations were off-target. She did argue that she was “partially successful at trial” and that, accordingly, only regular costs should be awarded. [ 29 ] I do not follow her “partially successful” argument. She indeed was partially successful, achieving a judgment of $46,000 (portion of house proceeds, loan repayment, and her share of the identified chattels). But Mr.

Forget had the greater share of success. That is why he was awarded costs of the action. And, given that her partial success was not as fruitful as accepting the offer would have been, that is why Mr. Forget is entitled to certain double costs. C. Conclusion [ 30 ] For these reasons, I will sign the “doubling-aspect included” draft bill of costs relayed with Ms. Donald’s June 17 th, 2020 letter. [ 31 ] I make no costs award for this costs decision, decided on the basis of counsel letters. [ 32 ] I thank the parties for their helpful submissions.

Heard by way of written submissions dated June 17 th and November 25 th and 27 th , 2020. Dated at the City of Edmonton, Alberta this 10 th day of December, 2020 . M. J. Lema J.C.Q.B.A. Appearances: Humaira Ahmad Barr Picard Law

for the Plaintiff Veronica Donald Stringham LLP for the Defendant