Quinn v Fong, 2021 ABQB 637

Court of Queen’s Bench of Alberta Citation: Quinn v Fong, 2021 ABQB 637 Date: 20210812 Docket: 4803 188466 Registry: Edmonton Between: Tim Quinn Plaintiff - and - Anne Fong Defendant _______________________________________________________ Endorsement of the Honourable Madam Justice L. Bernette Ho _______________________________________________________ [ 1 ] I released Reasons for Decision on July 20, 2021 respecting a hearing conducted pursuant to rule 7.1 of the Alberta Rules of Court [citation: 2021 ABQB 552 ] (the Decision ).

I invited the parties to contact me if they were not able to agree on how costs should be addressed. I received written submissions from counsel on August 6, 2021. [ 2 ] The Plaintiff, Mr. Quinn, submitted that he is entitled to costs pursuant to

Schedule C in the total amount of $6,750 because he was successful in arguing that the Quebec Agreement was unenforceable. It was further submitted that it was the Defendant who sought trial of an issue, which turned out to result in unnecessary expense to the parties, and that the matter was complicated. [ 3 ] The Defendant, Dr. Fong, submitted that there was mixed success and ordinarily, each party would bear their own costs.

However, in this instance, the matter of costs should be reserved to be addressed at the end of trial. [ 4 ] Rule 10.29 of the Alberta Rules of Court provides that a “successful party” is entitled to a cost award against the unsuccessful party, subject to the Court’s general discretion under rule 10.31. Rule 10.31 then outlines different forms of Court-ordered cost awards and rule 10.33 outlines what I should consider in making a cost award.

Those considerations include the result and degree of success of each party, the importance of the issues, the complexity of the action and any other matter related to the question of reasonable and proper costs that the Court considers appropriate. [ 5 ] I cannot agree with the Plaintiff’s submission that he should be entitled to his requested costs because he was the successful party. Although I agreed that I could not adopt the approach outlined by the Defendant’s counsel, that was only one aspect of my decision.

Nor can I agree with the Defendant’s submission that the matter of costs should be reserved for trial. In my view, both parties

took steps and made arguments before me for which there should be cost consequences at this juncture. [ 6 ] As noted in the Decision, there were two issues identified in the order setting the matter down for a rule 7.1 hearing (the Hearing Order ). The first issue related to the validity of the Quebec Agreement. Since both experts opined that the Quebec Agreement was valid, there should have been a concession made by the Plaintiff in this respect and there was no need to spend any hearing time on this question.

I understand that the Plaintiff disputes enforceability, but that is a separate question captured by the second issue. Therefore, in my view, the Plaintiff’s position on the first issue unnecessarily lengthened the conduct of the hearing before me.

I also consider that the action as a whole was advanced in some respect because the question around the validity of the Quebec Agreement will not have to be re-litigated at trial. [ 7 ] With regards to the second issue, the Defendant was firmly of the view that I should proceed to identify what properties were divisible having regard for both the Quebec Agreement and Alberta Agreement. For the reasons outlined in the Decision, I disagreed.

I declined to comment on the scope of the Alberta Agreement and it should be noted that I made no express finding on the validity of the Alberta Agreement as that issue was not expressly put before me by the Hearing Order. [ 8 ] In my view, there was mixed success and I am not persuaded that I should reserve the matter of costs to trial. I conclude that each party shall bear their own costs. Written submissions on costs received on August 6, 2021. Dated at the City of Calgary, Alberta on August 12, 2021. L. Bernette Ho J.C.Q.B.A. Appearances: David Kolinsky for the Plaintiff Tina Huizinga for the Defendant