Rocky View Water Co-Op Ltd v Cidex Developments Ltd, 2021 ABQB 715

Court of Queen’s Bench of Alberta Citation: Rocky View Water Co-Op Ltd v Cidex Developments Ltd, 2021 ABQB 715 Date: 20210907 Docket: 1901 12716 Registry: Calgary Between: Rocky View Water Co-Op Ltd. Plaintiff/Applicant - and - Cidex Developments Ltd. Defendant/Respondent _______________________________________________________ Endorsement of the Honourable Madam Justice A.

Woolley _______________________________________________________ Introduction [ 1 ] On July 29, 2021 I denied Rocky View Water Co-Op Ltd.’s claim against Cidex Developments Ltd. with respect to a fee that it had imposed as a special levy under the Rural Utilities Act , RSA 2000, c R-21 . I held RVWC had not met the requirements for enacting such a levy pursuant to the RUA and, as such, denied RVWC’s claim. [ 2 ] Cidex seeks costs of the litigation from RVWC. RVWC agrees that Cidex is entitled to costs, but disputes the quantum

claimed by Cidex. Cidex claims costs in the range of $35,000, plus an additional $4000 for the preparation of its cost submission. RVWC says that the costs should be in the range of $20,000 and should not include an amount for the preparation of costs submissions. Analysis [ 3 ] In my view the appropriate award of costs in this case is $23,868.75 in fees, plus $857.05 in taxable disbursements, $113.00 in non-taxable disbursements, $36.30 in other charges and $44.67 in GST, for a total award of $24,919.77 [ 4 ] I have calculated this award in two ways. First, it represents Cidex’s

Schedule C Column 2 fees, multiplied by 1.25, with the addition of Cidex’s claimed disbursements, other charges and GST. Second, the fees award equals 46% of the actual legal fees incurred by Cidex, as set out in its submitted invoices ($51,722.50). [ 5 ] In support of this calculation, and in light of the factors enumerated under Rule 10.33, I note the following: (

a) Cidex succeeded in all aspects of the litigation. (

b) The amount at issue at the time RVWC applied for the

summary trial was $107,184.80. Cidex submitted that as of June 29, 2021, which is after the trial but before my reasons were issued, the amount invoiced by RVWC was $159,520.74. This puts the amounts within Column 2, not Column 3 as referenced by Cidex in its submissions. However, RVWC indicated its intention to continue to charge the special levy and sought a declaration that it was entitled to do so, which means the amounts ultimately at issue were potentially higher than RVWC’s specific claim at trial. (

c) The legal issues raised were novel. (

d) The dispute affected the ongoing relationship between RVWC and Cidex. (

e) While raising novel legal issues, the parties presented the case in a straightforward manner with limited evidence. (

f) Both parties acted to ensure that this matter proceeded expeditiously and nothing in the record suggested that either party unnecessarily lengthened or delayed the action, or disputed matters that ought to have been admitted. [ 6 ] I also reference the recent decision of the Court of Appeal in McAllister v Calgary (City) , 2021 ABCA 25 , where the Court noted the potential relevance of both

Schedule C and the actual fees incurred by a party in determining the “reasonable and proper” costs to be awarded pursuant to Rule 10.31(1). The Court affirmed (at para 51) that a 40-50% partial indemnification is a “reasonable guideline” for a costs award. [ 7 ] I have reviewed the invoices submitted by Mr. Anderson and have no concern with the nature of the legal services provided, or the hourly rate charged by him. I note RVWC’s observation that some of the fees were billed prior to RVWC filing the Statement of Claim.

While the filing of the pleadings is relevant to the recoverability of fees, the central point is whether the fees related to the litigation; it is possible for a party to know that litigation is pending, and to take steps to advance that litigation, prior to pleadings being filed.

Here, the work done prior to the pleadings related to the legal issues in dispute (for example, reviewing the bylaws and legislation with respect to the imposition of a capital surcharge), and I am satisfied that they are properly considered in my assessment of the recoverable costs. [ 8 ] Cidex claimed costs incurred to file its costs brief. RVWC responded that it had been willing to agree to costs in the range of $20,000, which is close to the amount awarded here.

It suggested this weighed against giving additional costs for the costs submission. [ 9 ] I agree that Cidex should not receive an additional award for the amounts incurred to file its costs submission. While doing so may be appropriate in some cases, I do not think it is here given the amount of costs awarded and the limited nature of the submissions required. I also note that in

Schedule C, under “post-judgment” items, no recovery for the preparation of a costs submission is contemplated. Dated at the City of Calgary, Alberta this 7 th day of September, 2021. A. Woolley J.C.Q.B.A. Appearances: Keith Marlowe and Sarah Nykolaishen for the Plaintiff/Applicant

Norman Anderson for the Defendant/Respondent