Zaidi v, 2021 ABQB 444

Court of Queen’s Bench of Alberta Citation: Zaidi v 1667908 Alberta Ltd, 2021 ABQB 444 Date: 20210604 Docket: 2001 07428 Registry: Calgary Between: Mukarram Ali Zaidi Appellant - and - 1667908 Alberta Ltd., operating as The Calgary Pro Painters Respondent _______________________________________________________ Reasons for Decision of the Honourable Madam Justice K.D. Nixon _______________________________________________________ [1] Mr.

Zaidi, the Plaintiff (Appellant), sued The Calgary Pro Painters, the Defendant (Respondent), in Provincial Court, forbreach of contract and negligence in respect of a contract for painting in his home. His action was dismissed by the Provincial CourtJudge after a trial. Mr. Zaidi appealed the dismissal to the Court of Queen’s Bench. His appeal was dismissed with oral Reasons forDecision on May 21, 2021. [2] The Respondent sought leave to submit written argument with respect to costs.

Leave was granted to both parties to providewritten argument. [3] These are my Reasons for Decision in respect of costs. [4] The Respondent did not incur legal fees for the trial or the appeal as his counsel acted pro bono. The Respondentnevertheless seeks costs on the basis that the policy reasons behind costs are not only to reimburse a portion of legal fees and expensesincurred but also to discourage meritless claims.

The Respondent submits costs should be awarded as a sanction or deterrent against Mr.Zaidi for proceeding with an appeal it describes as without merit. [5] In 1465778 Ontario Inc. v 1122077 Ontario Ltd., , the Ontario Court of Appeal concluded costs could beawarded to a party represented by pro bono legal counsel in a private action not involving issues of general public importance. [6] The court examined the history of cost awards, noting the traditional purpose was to partially, or in limited circumstanceswholly, indemnify the successful party for legal costs incurred.

The court noted that additional policy reasons for costs have come into

play: to encourage settlement, to deter frivolous actions and to discourage unnecessary steps. [7] By way of example, the court cited the Supreme Court of Canada decision British Columbia (Ministry of Forests) vOkanagan Indian Band, 2003 SCC 71 where the court stated: As the Fellowes and Skidmore [infra] cases illustrate, modern costs rules accomplish various purposes in addition to the traditionalobjective of indemnification.

An order as to costs may be designed to penalize a party who has refused a reasonable settlement offer [.]… Costs can also be used to sanction behavior that increases the duration and expense of litigation, or is otherwise unreasonable orvexatious. In short, it has become a routine matter for courts to employ the power to order costs as a tool in the furtherance of theefficient and orderly administration of justice. Indeed, the traditional approach to costs can also be viewed as being animated by the broad concern to ensure that the justice systemworks fairly and efficiently.

Because costs awards transfer some of the winner’s litigation expenses to the loser rather than leaving eachparty’s expenses where they fall (as is done in jurisdictions without costs rules), they act as a disincentive to those who might be temptedto harass others with meritless claims. And because they offset to some extent the outlays incurred by the winner, they make the legalsystem more accessible to litigants who seek to vindicate a legally sound position.

These effects of the traditional rules can be connectedto the court’s concern with overseeing its own process and ensuring that litigation is conducted in an efficient and just manner. In thissense it is a natural evolution in the law to recognized the related policy objectives that are served by the modern approach to costs.(cited at paras 27 of 1465778 Ontario Inc.) [8] The Ontario Court of Appeal thus noted that costs serve a purpose beyond indemnification. Courts have awarded costs whereparties were self-represented or represented by pro bono counsel or a party whose legal costs were paid by a third party.

The rationale forpayment of costs to parties represented by pro bono counsel in public interest litigation was recognized in Rogers v. Greater Sudbury(City) Administrator, Ontario Works, (ON SC). It reduces the financial burden assumed by lawyers doing pro bonowork and allows more lawyers to accept that kind of retainer increasing the opportunity for litigants such as the plaintiff in Rogers tohave access to justice. [9] The court went on to note that costs had also been awarded to parties represented by pro bono counsel in non-public interestcases.

It noted that in reversing the Divisional Court’s denial of costs in Brockie v Ontario (Human Rights Commission), it had held (at para 6) that a policy against costs in such cases would “...act as a severe penalty to lawyers acting in the publicinterest by making it possible for litigants of modest means to access the courts.” (cited in 1465778 Ontario Inc at para 30) [10] The Ontario Court of Appeal concluded: … it is neither inappropriate, nor does it derogate from the charitable purpose of volunteerism, for counsel who have agreed to act probono to receive some reimbursement for their services from the losing party in the litigation.

To the contrary, allowing pro bono parties to be subject to the ordinary costs consequences that apply to other parties has two positiveconsequences: (1) it ensures that both the non-pro bono party and the pro bono party know that they are not free to abuse the systemwithout fear of the sanction of an award of costs; and (2) it promotes access to justice by enabling and encouraging more lawyers tovolunteer to work pro bono in deserving cases.

Because the potential for merit of the case will already factor into whether a lawyeragrees to act pro bono, there is no anticipation that the potential for costs awards will cause lawyers to agree to act only in cases wherethey anticipate a costs award. (at paras 34-35) [11] The Ontario Court of Appeal concluded that, in addition to the four existing considerations - to reimburse a successful partyfor some of its costs, to encourage settlement, to deter frivolous actions and to discourage unnecessary steps - a fifth consideration - ensuring access to justice - should be added.

As to whether rules should be developed by the court governing the availability of costs infavour of pro bono parties, the court reasoned this was unnecessary as the principles will guide the exercise of the court’s discretion on acase by case basis in deciding when costs should be awarded. [12] Costs were ultimately awarded in 1465778 Ontario to the impecunious appellants. Counsel at the appeal acted pro bonothrough the auspices of the Advocates’ Society pro bono program.

Under appeal was an order that the individual appellant, the soleshareholder of the corporate appellant, was not permitted to represent the corporation in the litigation, an order for security for costsagainst him and dismissal of the application. Absent counseling acting pro bono, the appellant would have been denied access to thecourt process. [13] Turning to the circumstances of the case before me, I am not satisfied the policy reasons behind costs justify the exercise ofmy discretion to grant an award of costs.

As noted earlier in these Reasons, the traditional reason for costs (to reimburse some of thelegal costs incurred) is not applicable here. In my view, none of the other policy reasons for an award of cost support an order for costs. Encouragement of settlement is not relevant here. While the Appellant was not successful in his appeal, the appeal cannot be said tohave been frivolous. There were no unnecessary steps taken by the Appellant.

Lastly, with respect to access to justice, this is not a caseof an impecunious party who would have been unable to access justice absent pro bono representation. [14] In conclusion, the application of the Respondent for costs is dismissed. Heard on the 21st day of May, 2021. Dated at the City of Calgary, Alberta this 4th day of June, 2021

K.D. Nixon J.C.Q.B.A. Appearances: Chrystelle Malongue for Mukarram Zaidi- Appellant Jonathan Garbutt and Michael Harker (student) for the Respondents