Carbone v Burnett, 2021 ABQB 750

Court of Queen’s Bench of Alberta Citation: Carbone v Burnett, 2021 ABQB 750 Date: 20210921 Docket: 1301 03943; 1401 00821 Registry: Calgary Between: 1301 03943 Angela Carbone Appellant (Plaintiff) - and - Taryn Burnett and Gowling Lafleur Henderson LLP Respondents (Defendants) And Between: 1401 00821 Angela Carbone Appellant (Plaintiff) - and - Megan McMahon and Gowling Lafleur Henderson LLP Respondents (Defendants) _______________________________________________________ Reasons for Judgement of the Honourable Mr. Justice N.E. Devlin _______________________________________________________ [ 1 ] Ms.

Carbone sued the barristers who successfully defended a medical malpractice suit she brought against a doctor in Calgary. Her action against the lawyers was dismissed by this Court and she appealed. The Court of Appeal dismissed her appeal and

awarded the respondents costs. She now appeals the decision of an Assessment Officer confirming the amount of those costs under Rule 10.44(1) of the Alberta Rules of Court . Procedural history [ 2 ] This matter has its genesis in the early part of the century when Ms. Carbone underwent a discretionary surgical procedure under the care of a physician in Calgary. In 2004, she commenced a medical malpractice suit against that doctor. That suit eventually made its way to trial and was dismissed on its merits.

The Court of Appeal upheld this outcome: Carbone v Whidden , 2015 ABCA 181 , leave ref’d 2015 SCCA No 341. [ 3 ] During the course of the medical malpractice action, Ms. Carbone began a separate lawsuit against the barristers who represented the defendant doctor. That action was struck for failure to disclose a cause of action and as constituting an abuse of process: Carbone v Burnett , 2019 ABQB 98 . Ms. Carbone unsuccessfully appealed that decision and the costs of that appeal were awarded against her: Carbone v McMahon , 2020 ABCA 328 .

This appeal before me is from the assessment of those costs. [ 4 ] The Court of Appeal released its decision in September 2020. There is no further right of appeal from the Court of Appeal’s decision. The time for filing an application for leave to appeal to the Supreme Court expired in November 2020. Ms. Carbone states that she intends to seek both a re-opening of the matter at the Court of Appeal and an extension of time to file for leave at the Supreme Court. She had taken neither step by the time this appeal was heard. [ 5 ] In 2021, the respondents attempted to move forward with recovering their costs award.

In February 2021, they wrote to Ms. Carbone offering 13 dates for an assessment hearing, ranging from March 16 to June 10. She declined to choose any of them. The respondents then scheduled the assessment for March 16, as was their right pursuant to Rule 10.37. [ 6 ] In an affidavit filed on this appeal, Ms. Carbone appended a lengthy correspondence with the Assessment Office. On March 10, she faxed (and subsequently emailed after being told there was no fax number for the Assessment Office) a letter attaching a medical note relating to a “compulsory attendance” on March 16 for a medical matter (the “Note”).

Neither the letter nor the Note specified the time of the appointment, its length, whether the nature of the appointment made it ill-advised for her to attend to other matters that day, or that she had any ongoing medical incapacity. [ 7 ] In her letter, Ms. Carbone requested that the Assessment Office not provide the Note to the respondents. [ 8 ] The March 10 letter did not specifically request an adjournment and did not indicate any enduring incapacity to attend beyond a scheduling conflict for the date of the hearing.

It simply stated that she would not be available for the scheduled hearing on March 16. [ 9 ] The Assessment Office responded to Ms. Carbone’s March 10 letter, confirming receipt of the Note and indicating that new matters were being scheduled in late June and July. In a further exchange of correspondence, Ms. Carbone suggested the June 10 date, which had been proposed earlier by the respondents during their attempts at cooperative scheduling. [ 10 ] At this point, the respondents had not seen the Note and objected to any rescheduling or adjournment of the March 16 hearing.

The Assessment Office ultimately advised the parties that the hearing would proceed on March 16. Ms. Carbone did not appear. The Assessment Officer heard Mr. Mack and, over his objection, adjourned the hearing to March 29, peremptory to proceed. [ 11 ] No transcript of the March 16 appearance has been provided, but the nature of that hearing is easily understood from several sources. First, the Assessment Office emailed Ms. Carbone on the afternoon of March 16, advising that the matter had been adjourned to March 29. A copy of this email is contained in her affidavit submitted on this appeal.

Second, the matter proceeded from scratch on the merits on March 29, showing that only the question of adjournment had been addressed on March 16. Third, Mr. Mack advised the Court that he had appeared on March 16, arguing that the matter should proceed given its history, and that the Assessment Officer adjourned it to the next available date over his objection. I have no difficulty concluding that only Ms. Carbone’s de facto adjournment request was dealt with on March 16. [ 12 ] The record on this appeal does not include any further correspondence from Ms.

Carbone to the Assessment Office, and she confirmed that she did not communicate further with the Assessment Office, or opposing counsel, after receiving the email about the adjournment to March 29. Orally, she explained that she believed that the matter having been made peremptory meant there was no possibility that she could influence or change the hearing date. [ 13 ] On March 29, Ms. Carbone did not appear and the matter proceeded in her absence.

The costs award [ 14 ] The respondents’ Bill of Costs consisted of three items: preparation of the appeal, appearance to argue the half-day appeal, and a prior appearance on a contested application to allow Ms. Carbone to file an amended factum. Each of these items was claimed at the rate specified in

Schedule C. The respondents sought a total of $8205.12 in costs for the appeal. [ 15 ] The Assessment Officer approved the amount claimed by the respondents, describing it as “a bare-bones bill of costs” made in compliance with the relevant orders underlying it and

Schedule C. The appeal [ 16 ] After an initial mistaken attempt to appeal the Assessment Officer’s decision to the Court of Appeal, Ms. Carbone filed a Notice of Appeal in this Court on June 30, 2021.

[17] The Notice of Appeal does not specify any basis upon which the Assessment Officer erred. The essence of Ms. Carbone’sappeal, as laid out in her brief, is that rescheduling the hearing to March 29 to accommodate her unavailability on March 16 wasunreasonable and prevented her from making submissions and being heard on the assessment. She argues that this breached her rights tofundamental procedural fairness and should result in a re-hearing being ordered. In the alternative, Ms. Carbone seeks a stay of theassessment decision. [18] Ms. Carbone sought to expand the record on appeal with an affidavit.

Despite this being an appeal on the record pursuant toRule 10.44(2), I have considered its contents. She appends a history of correspondence between herself and respondents’ counsel, asnoted above, but omitted a letter from Mr. Mack dated February 23, 2021, which the respondents provided in their record. That letterconfirmed Ms. Carbone’s failure to comment on the Bill of Costs provided to her, the numerous dates she was offered her for thehearing, and her refusal to accept any of them. [19] In her affidavit, Ms.

Carbone reiterates her complaints about her treatment by the Court of Appeal, but provides noexplanation for her failure to attend on March 29. Factually, the record shows that Ms. Carbone was aware of the March 29 hearing butcontains no evidence that she was unavailable on that date or had told anyone of her unavailability. The law [20] The successful party on an appeal is entitled to costs unless the Court orders otherwise: Rule 14.88.

That party also is entitledto enforce a cost award, including through the process of assessment, irrespective of the losing party’s cooperation or lack thereof: Rules10.37(1), 10.40. [21] An Assessment Officer’s decision is afforded deference and this Court will interfere only where the decision is based on awrong principle of law, is informed by a clear error of fact, awards a manifestly unreasonable amount, or where the hearing itself wasprocedurally unfair: Singh v Noce, 2018 ABQB 950 at para 3; Roncal Inc v Anderson, 2013 ABQB 453 at para 14. [22] Procedural fairness includes a right to participate in the hearing: A (LL) v B (A), (SCC), [1995] 4 SCR 536 atpara 27; CH v SF, 2021 SKCA 24.

Any special challenges of self-represented litigants should be taken into account when hearings arescheduled: “Statement of Principles on Self-Represented Litigants and Accused Persons” (September 2006), online: https://cjc-ccm.ca/sites/default/files/documents/2020/Final-Statement-of-Principles-SRL.pdf, as endorsed in Pintea v Johns, 2017 SCC 23 at para4. [23] There is no absolute rule that a decision maker, such as an Assessment Officer, must always give reasons: R v REM, 2008SCC 51 at para 10.

The requirement for reasons and the necessary level of detail are determined by the nature of the decision and thepurpose or function for which the reasons are delivered: R v Sheppard, 2002 SCC 26 at para 26; R v Braich, 2002 SCC 27 at para 31. Inthe context of a costs assessment, the need for reasons, and in particular detailed reasons, increases proportionally with any departurefrom the statutorily established framework for costs set out in

Schedule C to the Rules of Court or with the presence of unusual factualcircumstances. [24] This appeal is permitted by, and conducted under, R 10.44. On an appeal from an assessment of costs, the Court of Queen’sBench has broad remedial authority to confirm or vary an assessment award, or to order a rehearing: Decision of the judge 10.45(1) After hearing an appeal from an assessment officer’s decision, the judge may, by order, do one or more of the following: (

a) confirm, vary or revoke the decision; (

b) revoke the decision and substitute a decision; (

c) revoke all or part of the decision and refer the matter back to the same or another assessment officer; (

d) make any other order the judge considers appropriate. [25] Where this Court fairly can make an order resolving the costs issue on its merits with finality, the foundational rulesdemanding efficiency and conservation of judicial resources mandate it to do so: Rule 1.2(1), 1.2(2)(e), 1.3(1). Analysis [26] Ms. Carbone argues that she was deprived of her right to be heard on the assessment, both at the adjournment hearing onMarch 16 and the subsequent substantive hearing on March 29. She also submits that the Assessment Officer’s reasons for decision wereinsufficient. i.

Breach of procedural fairness – the right to be heard [27] Ms. Carbone’s main argument is that she was unfairly deprived of the right to appear and be heard. Her argument is that thehearing proceeded on March 16, despite the Assessment Officer having the Note, and that this tainted the entire matter as unfair andunreasonable. She further argues that she was unfairly deprived of her right to appear because the case was adjourned to March 29, adate she says she was again unavailable. Finally, Ms.

Carbone also referred to her “circumstances”, and in particular to her intention totake steps to reopen or further appeal the Court of Appeal’s decision, as reasons the costs assessment should not have proceeded. [28] There is no question that Ms. Carbone, as with all respondents to costs assessments, had a right to be heard. Her argument,

however, conflates that right with an entitlement to be heard on her chosen terms and timetable. The respondents had a right to have their costs assessed in a timely fashion. Ms. Carbone declined to select from 13 dates offered to her and chose not to attend either hearing. The March 16 date was properly set. [ 29 ] Ms. Carbone writing to the Assessment Officer attaching the Note saying she had an appointment on the scheduled hearing date did not automatically excuse her from attendance.

The fact that she chose not to provide the Note to the respondents justified their resistance to granting an adjournment based on her mere say-so. [ 30 ] Contrary to Ms. Carbone’s submission, she was heard on March 16, in the form of the Assessment Office obviously considering her email and the Note and adjourning the matter. Ms. Carbone’s preferred outcome prevailed on March 16, in so far as the matter did not proceed on the merits.

Reciprocal procedural fairness required the Assessment Officer to hear the respondents’ objections to the adjournment, especially given they were denied access to the evidence upon which it was to be based. Given the history of this litigation, the respondents cannot be faulted for resisting the adjournment. [ 31 ] There is no evidence before me that Ms. Carbone was unavailable on new date of March 29, or why, much less that she communicated this to anyone. At the hearing, she confirmed that she made no attempt to advise the Assessment Office that she was unavailable on that date.

She did attempt to provide me with an explanation, in quite general terms, as to why she did not appear on March 29, but her affidavit was silent on this issue. [ 32 ] These facts are fatal to her claim of unfairness. The Assessment Officer’s duty of procedural fairness was fulfilled by the initial adjournment, which was ordered over the respondents’ objection. Exercising one’s right to be heard involves, at a minimum, an obligation to communicate with opposing parties and tribunal when one is unable to attend a properly scheduled hearing.

Courts and tribunals cannot guess why a party is absent and are not under an obligation to repeatedly reschedule matters simply because a respondent has not appeared. [ 33 ] Expanding the right to be heard to the extent sought by Ms. Carbone would be contrary to the Rules and at odds with the duty of fairness owed to active litigants who are entitled to move their cases forward. The right to be heard carries a concomitant obligation to show up and speak.

Self-represented litigants cannot compel delays in Court proceedings simply by voting with their feet and opting out of the process: Gomes v Poulos , 2015 ONSC 5355 at paras 53 ff . [ 34 ] Ms. Carbone relied heavily on what she described as her understanding that a hearing being “peremptory” meant that there was no possibility of changing the date, irrespective of how valid her reasons for being unavailable might have been.

However, even a truly naïve litigant will be required to make an honest and meaningful attempt to communicate their inability to attend a hearing to the other parties involved, unless they are incapacitated. The generous indulgences afforded to self-represented litigants cannot extent to them being allowed to simply go radio-silent and make no attempts to engage with the process and parties. This would be unfair to everyone else and permit recalcitrant litigants to grind the process to a halt. [ 35 ] Ms. Carbone is neither a shy nor inexperienced litigant.

The record of correspondence with the Assessment Office that she provided confirms this, as does the broader history of this matter. In the words of Martin JA, Ms. Carbone is “a prolific litigator”. Indeed, this appeal appears to be the thirteenth appellate process that she has pursued in this complex of litigation: Carbone v McMahon , 2020 ABCA 27 at para 18 . [ 36 ] More pointedly, earlier in this matter the Court of Appeal’s Case Management Officer observed that Ms.

Carbone’s “pattern of last minute and late requests for extensions is excessive and concerning” and that her “lack of urgency or lack of appreciation of the significance of deadline and court orders or directions was noted by Justice Côté, 2015 ABCA 161 at para 24 ”. [ 37 ] This history undercuts Ms. Carbone’s claim that she was helpless in the face of the adjournment to March 29 on a peremptory basis, and the suggestion that her failure to appear or properly seek a further adjournment was something other than a conscious litigation decision. [ 38 ] Ms.

Carbone was not denied the right to be heard, but rather decided not to speak. The Assessment Officer committed no reversible error in proceeding as they did. ii. The sufficiency and merits of the Assessment Officer’s reasons [ 39 ] The merits of the costs assessment under appeal are relevant given this Court’s remedial mandate and authority under Rule 10.45. In this case, Ms. Carbone expressly declined to address the merits of the assessment decision on the basis that she had no opportunity to do so at first instance and should be permitted to do so at a new review hearing.

She repeated her unwillingness to address the merits when given an opportunity to do so at the hearing. [ 40 ] The Court of Appeal’s comments regarding a previous costs order in this matter are apposite in the matter before me: Given the respondents’ reliance on the tariffs, the only arguments that Ms.

Carbone could have advanced related to the propriety of the tariff items claimed and whether the circumstances warrant an enhancement to any of those properly claimed tariff amounts: Carbone v McMahon , 2020 ABCA 328 at para 13 . [ 41 ] The Assessment Officer’s characterization of the Bill of Costs in this case as basic and minimal is accurate. The respondents asked for exactly what

Schedule C grants for the steps taken in the proceeding, without any additions or ornamentation. Indeed, the respondents did not even seek most reasonable disbursements for the express purpose of avoiding any subjective disagreements over the bill. The amount of costs sought and awarded was unimpeachable. [ 42 ] This reality also disposes of Ms. Carbone’s complaint that the Assessment Officer’s reasons were insufficient. As noted

above, the extent of reasons required in a costs assessment will vary greatly according to the context of the case and the amount sought. Where that amount is exactly what the legislature has deemed appropriate,

Schedule C, in and of itself, provides sufficient reasons for the award. An Assessment Officer need not further justify applying the statutorily prescribed tariff. Having also confirmed that the Bill of Costs complied with the Court of Appeal’s decisions, the Assessment Officer’s work was done, and done in a clear, comprehensible, and reviewable manner. [ 43 ] I have no difficulty understanding why the Assessment Officer reached the decision they did. There is no factual dispute that the respondents were granted costs by the Court of Appeal in the matters for which the Bill of Costs was submitted.

The Assessment Officer was not required to have signed final Orders or judgement rolls before him. The reasons of the Court were an adequate basis for his decision. [1] [ 44 ] I am satisfied that the Assessment Officer’s decision was correct on the merits and supported by sufficient reasons. Request to stay the costs assessment [ 45 ] As an alternative remedy, Ms. Carbone asks this Court to stay the assessment decision pending her application for leave to appeal the underlying decision to the Supreme Court of Canada.

The principles governing such a stay are discussed in Poole v City Wide Towing and Recovery Service , 2020 ABCA 400 . [ 46 ] The stay fails on the first branch of the tripartite test for injunctive relief, namely the presence of a serious question. The decision of the Court of Appeal was rendered almost a year ago. No application has been commenced or perfected. While Ms.

Carbone made extensive written and oral submissions on the errors she says the Court of Appeal committed in this case, I am unable to discern a question of national concern that would satisfy the Supreme Court’s criteria for granting leave: Supreme Court Act , RSC 1985, c S-26 , s 40; Santoro v Bank of Montreal , 2019 ABCA 423 at paras 19-20 . [ 47 ] Similarly, while the Supreme Court does entertain late applications for leave to appeal, the history of this litigation, coupled with the vanishingly small chance that leave would granted in this case, tip the balance of convenience towards enforceability of the costs outcome at this stage.

This litigation is legally over. The possibility of Ms. Carbone taking ‘hail-mary’ steps at some point in the future should not prevent the respondents from having their costs entitlement resolved. Conclusion [ 48 ] For these reasons, the appeal from assessment decision, and the alternative request for a stay, are dismissed. [ 49 ] The respondents may provide a submission on costs regarding this appeal, not to exceed two typed pages, within 15 days of the release of these reasons. Ms. Carbone may provide a response of similar length within 15 days thereafter. Heard on the 10 th day of September, 2021.

Dated at the City of Calgary, Alberta this 21 st day of September, 2021. N.E. Devlin J.C.Q.B.A. Appearances: Angela Carbone for herself as Appellant Perry R. Mack, Q.C. for the Respondents