Betser-Zilevitch v Prowse Chowne LLP, 2021 ABQB 135

Court of Queen’s Bench of Alberta Citation: Betser-Zilevitch v Prowse Chowne LLP, 2021 ABQB 135 Date: 20210222 Docket: 1803 16987 Registry: Edmonton Between: Maoz "Moose" Betser-Zilevitch Appellant - and - Prowse Chowne LLP Respondent _______________________________________________________ Costs Endorsement of the Honourable Madam Justice J. A. Fagnan _______________________________________________________ [ 1 ] The parties provided written submissions on costs following dismissal of Mr.

Betser’s appeal from a Review Officer’s decision: 2020 ABQB 732 . [ 2 ] The Respondent seeks costs in the amount of $10,520.28 plus $500 for each of two allegedly improper affidavits, for a total of $11,520.28; or, in the alternative, that the court apply a multiplier of two to the

Schedule C steps to reflect Rule 10.33 considerations, for a total of $11,517.30. [ 3 ] The Respondent points to factors including: • its success before the Review Officer and on appeal • two formal offers which would have reduced fees and waived costs and interest • the amount involved ($80,916) • delay due to the Appellant’s failure to move forward with the appeal until the Federal Court of Appeal had made its decision in a related action • filing of two improper affidavits

• disparaging comments in correspondence, the brief, and argument • Appellant’s proposal to discontinue his negligence lawsuit if the Respondent did not defend against the appeal • Appellant’s arguments that were intended to undercut the Review Officer’s delegated authority under the Rules. [ 4 ] The Appellant requests that no costs be awarded, or if they are, they be limited to

Schedule C without adjustment. [ 5 ] The Appellant submits: • Respondent’s own drafting of the Contingency Fee Agreement (CFA) gave rise to the dispute • adjournments of the appeal hearing were either by consent or out of the control of the parties • inaccurate submissions were made by the Respondent during the Review Hearing, necessitating affidavits intended to shorten the action, but ultimately the factual errors were conceded/corrected by the Respondent on appeal • Respondent did not file a cross-appeal regarding the Review Officer’s decision not to order costs • the amount in issue was relatively small • Respondent included communications in its brief that did not form part of the appeal record and were not submitted by affidavit • the two offers were not genuine given that the Respondent’s drafting of the CFA gave rise to the dispute. [ 6 ] The successful party is generally entitled to costs against the unsuccessful party: Rule 10.29.

The court has wide discretion on costs: Rule 10.31. Rule 10.33 sets out a number of relevant factors. The Respondent’s offers in this case may be considered under Rule 10.33(2)(h). [ 7 ] I have considered all of the circumstances, including the following. [ 8 ] The case before the Review Officer arose from, and was complicated by, the deficient CFA drafted by the Respondent which led to the Review Officer having to determine reasonable fees under Rule 10.2. [ 9 ] The Review Officer declined to grant costs of that hearing, and his decision on that point was not challenged in any cross- appeal.

Therefore, I decline to award costs in relation to the hearing before the Review Officer.

It follows that the Appellant is not responsible for any disbursements and other charges which related only to the hearing before the Review Officer. [ 10 ] The Respondent was successful on appeal, beating prior offers. [ 11 ] While the amount in issue is not insignificant, it is at the very low end of Column 2. [ 12 ] Although there was some delay, the Appellant has provided explanations. [ 13 ] The potential outcome of the Federal Court appeal was a factor considered by the Review Officer on application of Rule 10.2 in assessing results achieved and in the face of the lack of clarity in the CFA regarding appeal, and was therefore arguably not irrelevant to the issues on this appeal. [ 14 ] The two impugned affidavits addressed in part misstatements or misapprehensions of fact during the Review Officer hearing within the knowledge of the Respondent that were conceded by the Respondent on appeal. [ 15 ] As for the proposal to discontinue the negligence lawsuit, no particulars of alleged disparaging comments were provided by the Respondent.

This appeal is closely related to the Appellant’s negligence lawsuit which would by its very nature contain allegations critical of the Respondent’s work.

Again, there is no question that the Respondent’s poorly drafted CFA played a central role in both the Review Officer hearing and the appeal. [ 16 ] As for the Appellant attempting to undermine the Review Officer’s authority, the main issues on the appeal arose due to some lack of clarity in the case law regarding a client’s ability to rely on a defective CFA, and the relevance of the Respondent’s poorly drafted CFA to the outcome of the review hearing in this case, both of which necessarily raised the issue of the Review Officer’s authority under the Rules and his exercise of it. [ 17 ] Having considered all of the parties’ submissions and circumstances, I grant costs on Column 2 payable to the Respondents for the appeal hearing (special chambers application requiring written briefs - Item 8(1)), doubled due to the formal offers.

While costs were addressed in the offers, the parties had mixed success on the issues raised in their written argument on costs. Taking into account all of the circumstances, I grant costs to the Respondent of the written argument regarding costs at the Court’s request (Item 12), multiplied by 1.5. Dated at the City of Edmonton, Alberta this 22 nd day of February, 2021.

J. A. Fagnan J.C.Q.B.A. Appearances: Ian Carruthers for the Appellant Victoria A. Jones for the Respondent