Benning v Harding, 2021 ABQB 605

Court of Queen’s Bench of Alberta Citation: Benning v Harding, 2021 ABQB 605 Date: 20210730 Docket: 4804 012019 Registry: Grande Prairie Between: Michelle Teresa Benning Applicant/Plaintiff - and - Darin Harding Respondent/Defendant _______________________________________________________ Reasons for Decision of the Honourable Madam Justice D.L. Shelley in Relation to an Application for Costs _______________________________________________________ [ 1 ] Mr. Harding applied to have Ms. Donald removed as Ms. Benning’s counsel on the basis of an alleged conflict of interest. I dismissed Mr. Harding’s application.

My reasons for doing so are set out in Benning v Harding , 2020 ABQB 741 . [ 2 ] In my Reasons, I indicated that Ms. Benning was entitled to costs of the application. Unfortunately, the parties were unable to agree on the quantum of those costs. They were therefore directed to provide their written submissions in relation to that issue.

Position of the Parties Ms. Benning’s Position [ 3 ] Ms. Benning submits that she ought to be awarded $1,350 in costs. Referring to Rule 10.33(1) of the Alberta Rules of Court , and the factors to be considered thereunder, she notes that: • She was the successful party; • Since there was no monetary amount at issue in the application, the amount ought to be determined having regard to column 1 of the Schedule. She submits that this was an application requiring written briefs, multiple appearances and several Affidavits; • The application was of paramount importance to Ms.

Benning, as it sought to restrict her right to counsel of her choice. As such, she submits that it was a significant step in the litigation; • Although there was a single issue involved, that issue was complex, as evidenced by the number of appearances and the requirement of briefs; • She submits that, once Mr. Harding raised the issue, steps were taken and evidence was provided by her which ought to have eliminated the need for the application. She submits that her conduct shortened the action which was required to resolve this issue. Mr. Harding’s Position [ 4 ] Mr. Harding submits that Ms.

Benning is entitled to no more than $300, being the amount awarded to Mr. Harding in respect of a previous application. [ 5 ] In relation to the factors set out in Rule 10.33, Mr. Harding submits that his application was necessary due to the failure of Ms. Benning and her counsel to advise him of the potential conflict of interest. Mr. Harding submits that the circumstances are similar to those involved in the prior court appearance in which I dealt with issues surrounding an Emergency Protection Order. Mr.

Harding further submits that the circumstances were important enough to justify the application and that it was important that the conflict issue be determined before the action continued, given the nature of the allegation. [ 6 ] Mr. Harding submits that the complexity of the disqualification application was minimal and that the cost amount should be reflective of that lack of complexity. [ 7 ] Mr. Harding submits that the law firm Stringam LLP is liable for the necessity of the application as a result of its failure to follow the Code of Conduct in connection with the merger of Ms. Donald’s firm.

He submits that Stringam’s failure to communicate the merger to Mr. Harding should result in a portion of liability be attributed to the firm. [ 8 ] Further in that regard, Mr. Harding submits that, had Stringam followed the Code of Conduct and advised him of the merger, the issue could have been addressed earlier and appropriate evidence provided to alleviate the concern. Failing to do so, submits Mr. Harding, warrants a reduction in the costs rewardable to Ms. Benning. [ 9 ] Referring again to the $300 in costs awarded to Mr. Harding in connection to his application for shared parenting following Ms.

Benning’s obtaining an EPO, Mr. Harding points out that costs were not awarded by Justice Neufeld in connection with the EPO hearing because the Court of Appeal has ruled that costs cannot be awarded in connection with those proceedings. Mr. Harding suggests that his inability to obtain a costs award in connection with his successful challenge of the EPO is a factor which can be considered in connection with this application. He submits that “the fact that Mr. Harding was not awarded costs after his success on such a serious issue should weigh against Ms.

Benning receiving anything more than $300 in costs for more success in the Conflict-of-Interest issue”. [ 10 ] Finally, Mr. Harding points out that, although my Reasons for Decision directed that my assistant be contacted within 30 days if the issue of costs could not be resolved, my assistant was not contacted until 50 days after the issuance of my Reasons for Decision and that it was more than two weeks later that his counsel was advised of this fact. Mr.

Harding submits that the direct contact to my assistant, not being copied to opposing counsel, was also a breach of an earlier direction and that this too ought to be taken into account in determining the quantum of costs. [ 11 ] Finally, Mr. Harding submits that the amount awarded to Ms. Benning should be set off against the $300 in costs that Ms. Benning currently owes to Mr. Harding. Analysis [ 12 ] This matter started as a regular Chambers application. It was not a Special Application for which written submissions were required.

However, it was contested, and written materials were requested so that the Court would have all relevant evidence and legal authorities. Under

Schedule C of the Rules of Court , a contested regular application would attract costs of $500 but would not ordinarily entail written submissions. [ 13 ] Costs are, notwithstanding

Schedule C, within the discretion of the Justice who hears the matter, having regard to all of the factors enumerated in the Rules of Court . Each application is considered on its own merits, unless the Justice hearing the matter has stipulated otherwise. For example, sometimes costs are awarded in the cause, rather than being awarded in connection with a specific application.

[ 14 ] The fact that Mr. Harding received $300 in costs in connection with a different application before a different judge does not determine the costs that should be awarded in this instance. Similarly, the fact that Mr. Harding could not be awarded costs in connection with the EPO hearing results from a decision by the Legislature not to provide for costs in those matters. [ 15 ] I find that this issue required more than would be expected in connection with a regular Chambers application. As it unfolded, it was more akin to a Special Chambers application. The issue was important, particularly to Ms. Benning.

As the successful party, she is entitled to reasonable costs of advancing her position. I conclude that, having regard to all of the circumstances, the issues, and the work involved, $1,000 is an appropriate amount. Conclusion [ 16 ] Ms. Benning is awarded $1,000 in costs in connection with the application to disqualify her counsel, inclusive of disbursements. Heard by way of written submissions dated January 29, 2021 and February 12, 2021. Dated at the City of Grande Prairie, Alberta this 30 th day of July, 2021. D.L. Shelley J.C.Q.B.A.

Appearances: Veronica Donald Stringam LLP for the Applicant/Plaintiff Joel Sandor Grande Peace Law for the Respondent/Defendant