Louise Gibbs Plaintiff - v. -, 2021 ABQB 31

Court of Queen’s Bench of Alberta Citation: Gibbs v FTCG Enterprises Inc, 2021 ABQB 31 Date: 20210112 Docket: 1901 13533 Registry: Calgary Between: Louise Gibbs Plaintiff - and - FTCG Enterprises Inc., Choklat Inc. and Bradley T. Churchill Defendants _______________________________________________________ Endorsement as to Costs of the Honourable Madam Justice B.B.

Johnston _______________________________________________________ [ 1 ] The Plaintiff seeks costs against the Defendants on a full indemnity basis following my oral decision of November 9, 2020, wherein I granted judgment in favour of the Plaintiff against FTCG in the amount of $331,200. [ 2 ] The Plaintiff provided written submissions on December 1, 2020. The Defendants provided written submissions on January 8, 2021. [ 3 ] During the trial, the Plaintiff applied for judgement against the Defendants for money owing to her. The Plaintiff asserted the amounts advanced to FTCG were a loan with fixed repayment terms.

The Defendants disagreed and claimed they were a subscription for Preferred Shares. The Plaintiff further claimed the conduct of the Defendants amounted to oppression under the Business Corporations Act . [ 4 ] The Plaintiff sought to have the matter dealt with as a

summary trial on the basis of affidavit evidence. No cross- examinations occurred on the affidavits. [ 5 ] Additional facts are set out in my oral decision issued on November 9th, 2020. I will not repeat the additional facts. [ 6 ] In my oral decision I found that the agreement between the Plaintiff and FTCG was a loan and that the Defendant FTCG had breached the loan agreement. I ordered judgement against FTCG in the amount of $331,200. I further determined that I could not fairly resolve the issue of oppression based on the record that was before me. I directed a full trial on the question of oppression.

[ 7 ] Counsel for Ms.

Gibbs seeks costs on a full indemnity basis. [ 8 ] In support of her submission, the Plaintiff argues that: • t he Plaintiff was substantially successful at trial; • the Defendants unreasonably denied the Plaintiff was a creditor when she plainly was one; • the Plaintiff had no alternative but to turn to the Courts for redress which caused the Plaintiff to exhaust resources to recover that which was clearly hers; • the Plaintiff was forced to bring an application to address Churchill acting as a self represented litigant despite repeated requests for the Defendant to do so himself; • the Defendants filed their affidavits a week late notwithstanding the order of Justice Woolley; and • the Defendants did not present any authorities. [ 9 ] In this case, the Plaintiff was substantially successful and is entitled to costs; Mahe v Bouliann e , 2010 ABCA 74 at para 6 . [ 10 ] Therefore, the question I must consider is whether this case is an appropriate case for an award of costs on a full indemnity basis. [ 11 ] As the Court of Appeal noted in Sidorsky v CFCN Communications Limited , 1997 ABCA 280 at para 28 ,”[c]osts are discretionary and as a general rule a departure from party and party costs should only occur in rare and exceptional circumstances.” I do not find that the facts in this case rise to the level of “rare and exceptional circumstances”.

I decline to award costs on a full indemnity basis. [ 12 ] There is no doubt that the Plaintiff was required to pursue litigation in order to obtain her remedy.

However, that is the case with all actions commenced in this Court. [ 13 ] Although the Defendants correspondence with the Plaintiff was less than courteous, I cannot say the Defendants pursued their defence in bad faith or that their conduct during litigation was otherwise improper. [ 14 ] The late filing of the affidavits was unfortunate, but is not so egregious as to justify an award of costs on a full indemnity basis. [ 15 ] The Defendants’ argument that the funds were not a loan, although not accepted, was not without any basis as the parties had signed a Subscription Agreement. [ 16 ] The Defendant FTCG was ordered to pay the Plaintiff $331,200. [ 17 ] In the result, I award the Plaintiff costs based on Column 3 of

Schedule C, including for this cost application. Heard by way of written submissions on the 1 st day of December , 2020 and January 8, 2021. Dated at the City of Calgary, Alberta this 12 th day of January, 2021 B.B. Johnston J.C.Q.B.A. Appearances: Mohamed A. Amery of Nerland Lindsey LLP

for the Plaintiff Randell L. Thiessen of Thiessen Law Group for the Defendants