Flock Estate v Flock, 2021 ABQB 774

Court of Queen’s Bench of Alberta Citation: Flock Estate v Flock, 2021 ABQB 774 Date: 20210924 Docket: FL01 21829 Registry: Calgary Between: William McKen, Litigation Representative of the Estate of Arlene Joy Flock Applicant - and - Doran Alfred Flock Respondent _______________________________________________________ Endorsement of Costs of the Honourable Madam Justice B.B. Johnston _______________________________________________________ [ 1 ] The Applicant seeks enhanced costs against the Respondent. The Respondent opposes any award of costs.

Background [ 2 ] On June 30, 2021 I issued my written decision in Flock Estate v Flock , 2021 ABQB 502 (“ Flock ”). [ 3 ] The Flock decision followed more than two decades of acrimonious litigation in multiple proceedings. At the heart of the matter before me in Flock was a dispute over title to a house.

Specifically, the Applicant sought a declaration that the joint tenancy in a residence located on Prospect Avenue SW, Calgary (the “Property”) had been severed, and that it was held by the parties as tenants in common. [ 4 ] I will review the background events and some of the material facts leading up to my decision. Additional facts are set out in my decision and will not repeated. Background of Prior Proceedings [ 5 ] Ms. Flock and Mr. Flock were married in 1982. They purchased the Property in December 1993. The parties separated in

1994 and divorced in May 1999. Mr. Flock left the property and has not resided in the Property for the last 28 years. There were no children of the marriage. [ 6 ] In 1999, Mr. William McKen moved into the Property. Mr. McKen and Ms. Flock married in 2009. They continued to live in the Property until Ms. Flock’s death in 2014. Mr. McKen has continued to reside in the Property. [ 7 ] Mr. Flock commenced a matrimonial property action in 1996. The litigation continued for over 18 years.

During this period, the parties agreed to binding arbitration but the arbitration award was set aside: Flock v Flock , 2007 ABQB 307 . The Court of Appeal denied the application for leave to appeal: Flock v Flock , 2007 ABCA 287 at para 13 . [ 8 ] In 2014, an application to dismiss the matrimonial property action for long delay was filed. The application was initially unsuccessful: Flock v Flock Estate , 2015 ABQB 671 .

However, in 2017, the matrimonial property action was dismissed by the Court of Appeal for long delay: Flock v Flock Estate , 2017 ABCA 67 ; leave to appeal refused [2017] 2 SCR vi: Flock at para 14 . [ 9 ] The background of the prior proceedings is provided for context only. Originating Application [ 10 ] The Applicant filed an Originating Application on August 6, 2015. An Amended Originating Application was filed on November 15, 2016 seeking a declaration that the joint tenancy of the Property had been severed such that the Applicant and Respondent held the Property as tenants in common.

It further sought a direction requiring the Registrar of Land Titles to issue a new certificate of title and an order directing the sale of the Respondent’s interest to the Applicant: Flock at para 15 . [ 11 ] Several interlocutory matters followed including: • An application relating to questioning on the affidavits. The Chambers Judge made determinations regarding the questioning.

He further decided that the hearing of the Originating Application on the merits would address the “severance” of the joint tenancy and would not consider the “distribution” of the value of the Property. • The decision was appealed to the Court of Appeal: Flock Estate v Flock , 2019 ABCA 194 (“ Flock CA ”). The Court of Appeal directed that the hearing of the Originating Application would “concern both the “severance” issue, and if severance is granted the “distribution” of the proceeds”: Flock CA at paras 16 and 21 .

The Court of Appeal limited “the pre-hearing questioning, affidavits and document production in the Originating Application proceeding” to “matters that are relevant to the parties’ dealings with the Prospect Avenue property”: Flock CA at para 22 . Evidence relating to the arbitration award (including the arbitrator’s findings about the positions of the parties, their contribution to the purchase and improvement of the Prospect Avenue property and his proposed division of that property) was inadmissible.

Certain without prejudice correspondence or offers of settlement were also inadmissible: Flock CA at paras 30 and 38 . • Following the Flock CA decision, the parties entered into a Consent Order to have the matter heard in a special by way of affidavit evidence rather than as a trial with viva voce evidence. • The Applicant filed its brief and supporting materials in March 2020. The Respondent filed an application to strike portions of the affidavit that were contrary to the direction in Flock CA . An application was heard before Justice Ho: Flock v McKen , 2020 ABQB 744 (“ McKen ”).

Justice Ho ordered the offending portions of the affidavits struck: McKen at para 31 . The Applicant was provided leave to apply before the Justice hearing the Originating Application if it sought to rely on evidence filed in other proceedings. • The Applicant filed an application to adduce evidence. The application was withdrawn in oral argument as there was no dispute regarding the filed materials with the redactions directed by Justice Ho: Flock at paras 15-22 . [ 12 ] In my decision in Flock , I found that the joint tenancy had been severed and the title to the Property is held as tenants in common.

Once an appraisal was completed, I directed that 50% of the appraised value of the Property be paid by the Applicant to Mr. Flock. [ 13 ] I directed that costs could be spoken to within 30 days of my decision. Submissions of Counsel [ 14 ] Submissions on costs proceeded by way of written briefs. [ 15 ] Counsel for the Applicant seeks an award of costs in the amount of 40-50% of the Applicant’s actual legal expenses, to be assessed by the Assessment Officer in accordance with Rule 10.34 of the Alberta Rules of Court (the “ Rules ”). The Applicant estimates the costs to be in the range of $250,000.

Most of these costs are associated with the interlocutory applications. [ 16 ] In support of its submission, the Applicant argues that: • As the successful party, the Applicant is entitled to costs. • The Respondent unnecessarily lengthened or delayed the action. The Respondent “relentlessly pursued interlocutory applications seeking to exclude evidence and the Applicant is entitled to enhanced costs. In Edinburgh Tower Development Ltd. v Curtis , 2021 ABQB 239 , the Court awarded costs in the amount of 40% of the successful party’s actual costs due to unnecessary delay by the unsuccessful party.

Based on the Respondent’s conduct, an award of 40-50% of its costs is appropriate.

• Notwithstanding the Respondent’s partial success on some of these interlocutory applications, they had no impact on the outcome of the action. The relief sought by the Applicant was granted, rendering the interlocutory applications unnecessary in the context of this action. [ 17 ] In support of his submission, the Respondent argues: • The Respondent did not “unnecessarily lengthen or delay the action”.

The Applicant’s conduct has resulted in delay, the multiplicity of proceedings and “a contravention with the rules of evidence.” Specifically: o the Applicant has not justified a nearly three year delay in taking any steps to advance the action; and o the interlocutory applications were a direct and necessary consequence of inadmissible evidence tendered by the Applicant in its materials.

The interlocutory applications resulted in the striking of approximately 1/3 of the Applicant’s total evidence, in addition to a direction for the withdrawal from the Court record of an entire brief filed by the Applicant. • Costs of many of the interlocutory applications have already been fixed by the Court in any event of the cause. • Enhanced costs should only be awarded in exceptional circumstances. This is not one of those circumstances. • The Applicant’s own conduct has resulted in wasted costs. Issues [ 18 ] Should costs be awarded to the Applicant? If so, on what basis?

Is the Applicant Entitled to Costs? [ 19 ] An award of costs is the prima facie entitlement of the successful party, but that entitlement may not always obtain: McAllister v Calgary (City), 2021 ABCA 25 at para 21 (“ McAllister ”). [ 20 ] As a general rule, a departure from party and party costs should only occur in rare and exceptional circumstances: Sidorsky v CFCN Communications Limited , 1997 ABCA 280 at para 28 . [ 21 ] In this case, the Applicant was substantially successful and is entitled to costs under Rule 10.29(1).

The question is what is the appropriate quantum. [ 22 ] Rule 10.33(1) provides a number of considerations that a court may take into account in making a costs award, including:

a) the result of the action and the degree of success of each party;

b) the amount claimed and the amount recovered;

c) the importance of the issues;

d) the complexity of the action;

e) the apportionment of liability;

f) the conduct of a party that tended to shorten the action; and

g) any other matter related to the question of reasonable and proper costs that the Court considers appropriate. [ 23 ] Further, in deciding whether to impose, deny or vary an amount in a cost award, the Court may consider the factors set out in Rule 10.33(2).

In this case, the parties both argue this Court should have regard to: • the conduct of a party which unnecessarily lengthened or delayed the action: Rule 10.33(2)(a); • whether any application, proceeding or step in an action was unnecessary, improper or a mistake: Rule 10.33(2)(d); and • a contravention of or non-compliance with the Rules or an order: Rule 10.33(2)(f). [ 24 ] The Applicant was the successful party. As such, it is entitled to costs. What Costs are Appropriate? [ 25 ] The amounts involved in the action were not particularly large.

The value of the Property has not been finalized, but based on dated appraisals that were before the Court, its value is unlikely to exceed $2 million. [ 26 ] The history of this matter was lengthy but the issues before this Court were not especially complex, nor were they straightforward. Both parties filed comprehensive written briefs. These briefs were necessary and helpful to this Court.

[ 27 ] Both parties assert that the conduct of the other party unnecessarily lengthened and delayed the action. Although ultimately successful, I find the Applicant contributed to the unnecessary lengthening and delay in this matter. [ 28 ] The Applicant originally filed its Originating Application on August 6, 2015. Other than filing an Amended Originating Application in November 15, 2016, no steps were taken by the Applicant to advance the application for almost three years. [ 29 ] The parties agreed to proceed with a special with affidavit evidence, rather than a viva voce hearing.

This could have shortened the proceedings. Unfortunately, as the history of this matter shows, this was not the case. The filing of affidavits and briefs led to a number of further court applications. [ 30 ] The Respondent was successful in the interlocutory applications, but the Applicant asserts that the interlocutory applications had no impact on the outcome of the action. [ 31 ] In my view, the appropriate approach is not to determine the utility of the applications in hindsight after having regard to the ultimate outcome of the action.

Notwithstanding the direction of the Court of Appeal in Flock CA , the Applicant filed offending materials. This resulted in the Court in McKen striking large portions of the Applicant’s materials. Just because a party is ultimately successful in the litigation does not vitiate the need to follow the Rules and directions of the Court.

I therefore disagree with the Applicant that the applications added to the delay and lengthening of the proceedings. [ 32 ] Once the factors in Rule 10.33 have been considered, the Court must have regard to Rule 10.31 which articulates options for making costs awards: McAllister at para 24 . [ 33 ] As the Applicant concedes, most of the costs it incurred were associated with responding to the interlocutory applications. For the reasons noted above, I find these applications could have been avoided if the Applicant had followed the Rules and direction of the Court of Appeal.

Awarding a percentage of full indemnity costs in the range of 40-50% would be rewarding the Applicant for not following the Rules and the direction from the Court of Appeal and I decline to do so. [ 34 ] Having considered Rule 10.31, I find that an award of party and party costs is appropriate. [ 35 ] In the result, I award the Applicant costs based on Column 4 of

Schedule C, which is based on approximately ½ of the value of the Property. The Applicant’s claim was only to assert an undivided ½ interest of the Property as a tenant in common. Heard by way of written submissions on the 22 nd of July 2021 and the 27 th day of August 2021, 2021. Dated at the City of Calgary, Alberta this 24 th day of September, 2021. B.B. Johnston J.C.Q.B.A. Appearances: Mike Cashion for the Applicant Muneeb Sadiq for the Respondent