Cold Lake Industrial Park GP Ltd v Abt (Estate), 2021 ABQB 783

Court of Queen’s Bench of Alberta Citation: Cold Lake Industrial Park GP Ltd v Abt (Estate), 2021 ABQB 783 Date: 20210928 Docket: 1412 00118 Registry: Wetaskiwin Between: Cold Lake Industrial Park GP Ltd. and Charles E. Ryan Appellants (Defendants) - and - The Estate of Markus Abt by its Litigation Representative, Daniel Abt, and Adelle Abt Respondents (Plaintiffs) _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice T.D. Clackson _______________________________________________________ I.

Introduction [ 1 ] I deliver this decision because of the untimely death of our friend and esteemed colleague, Justice J.W. (Bill) Hopkins. He was unexpectedly taken from us at much too young an age. He is sorely missed. Justice Hopkins heard the within application in November 2020 and received further written submissions from the parties in December 2020. He reserved his decision.

[ 2 ] I have been provided with Justice Hopkin’s handwritten notes, the transcript of the November proceedings and all the submissions of the parties. [ 3 ] This is an appeal of a costs assessment decision. There is also an issue as to whether the appeal is timely. II. Background [ 4 ] I won’t detail the long and tortured history of these actions. Suffice it to say that the trial judge awarded significant costs against the Defendants (the Appellants) based in part on their bad behaviour and the fact that formal offers to settle by the Plaintiffs (Respondents) were exceeded at trial.

The Plaintiffs’ conspiracy action against the Defendants was dismissed at trial and the Defendants were awarded double costs from the date of their formal offer to settle that action. [ 5 ] The Defendants appealed the trial decision unsuccessfully and further costs were awarded against them by the Court of Appeal. Notably, no issue was raised on appeal as to the costs awarded by the trial judge.

Also, notably, the trial judge was never approached to clarify his order as to costs. [ 6 ] The Defendants argue that the costs awarded against them was one set of doubled double Column 5 costs jointly and severally amongst all Defendants with the Defendants Makuch and Sadownik jointly and severally responsible for a smaller proportion of those costs, defined as doubled double Column 4. [ 7 ] The Plaintiffs argue that the finding of the Assessment Officer is reasonable. He concluded that the wording of the trial judge’s reasons meant that the Plaintiffs were awarded two sets of costs.

The costs against Makuch and Sadownik were separate from the costs awarded against the other Defendants. As I have said, the Plaintiffs also raise an issue respecting the timeliness of this appeal. That issue arises because the appeal had to be filed and served within one month after the date of the assessment. The assessment decision was rendered June 25, 2020. July 25, 2020 fell on a Saturday. The appeal was filed on Monday, July 27, 2020 and served that day but not until after 5:30 pm which is after the close of business. III. Analysis A.

Timeliness [ 8 ] There is no application to extend the time to appeal the assessment decision nor to extend the time to serve that appeal. There is no application to declare the service effected good and sufficient. I agree with the Plaintiffs that the

Interpretation Act, RSA 2000, s 22 (7) required the Defendants to have filed and served their appeal by the close of business on Friday, July 24, 2020. [ 9 ] I am reluctant to dismiss the appeal on the basis that it’s not filed in a timely way when an application to extend time could be mounted and these parties could return, yet again. I make no judgment on whether that is in fact possible. However, the criteria for extending time are specific and have not been addressed, Li v Morgan , 2020 ABCA 186 .

In result, I do not have the evidence to determine whether their was a bona fide intention to appeal before the close of business on July 24, 2020. I have no evidence as to why that deadline was not met. Both issues are fundamental to any claim for relief. And, of course, I have no such claim. B. Standard of Reasonableness [ 10 ] Additionally, the Plaintiffs’ argument on the merits of the appeal are compelling. The decision of the Assessment Officer is reviewed on a standard of reasonableness. It is owed deference.

The assessment decision interpreted the trial judge’s reasons in a manner which the words plainly bear. The argument now made by the Defendants was not directly raised before the Assessment Officer. While any position, with charity and some magnanimity, can be seen to be arguable, one needs a good deal of both here, to see any merit in this appeal. IV. Conclusion [ 11 ] In result, I am constrained to dismiss this appeal. Heard on the 19 th day of November, 2020. Dated at the City of Wetaskiwin, Alberta this 28 th day of September, 2021. T.D. Clackson J.C.Q.B.A. Appearances:

G. James Thorlakson, Dentons Canada LLP for the Appellants Rick H. Hemmingson Professional Corporation for the Respondents