Berman v Berman, 2021 ABQB 933

Court of Queen’s Bench of Alberta Citation: Berman v Berman, 2021 ABQB 933 Date: 20211119 Docket: 4801169252 Registry: Calgary Between: Stephanie Joy Berman Plaintiff - and - Richard Daniel Bland Berman Defendant _______________________________________________________ Endorsement on Costs of the Honourable Mr. Justice D.A. Labrenz _______________________________________________________ [ 1 ] This costs decision follows the latest installment in the parties’ ongoing matrimonial dispute.

Both the costs application and the application underlying it have some unusual features. [ 2 ] On August 12, 2019, I issued a judgment (the “Judgment”) respecting custody, parenting, matrimonial property and support: SJB v RDBB , 2019 ABQB 624 . The Judgment was upheld on appeal: SJB v RDBB , 2020 ABCA 108 . [ 3 ] The Judgment Roll in respect of the Judgment was filed on November 5, 2019. The provisions of that Judgment Roll relevant to this application are as follows: 28.

THAT the Registrar of Land Titles is hereby directed to immediately transfer the Defendant’s interest in the Pump Hill Home, located at 332 Pump Hill Gardens SW, Calgary, Alberta T2V 4M7, and legally described as: PLAN 7510748 BLOCK 17 LOT 35 EXCEPTING THEREOUT ALL MINES AND MINERALS AND THE RIGHT TO WORK THE SAME Into the name of the Plaintiff, Stephanie Joy Berman, of 332 Pump Hill Gardens SW, Calgary, Alberta T2V 4M7;

29. THAT the caveats registered against title to the Pump Hill Home for the Defendant’s legal fees shall be paid out from the proceeds of sale of the Pump Hill Home, such caveats being: (

a) the Caveat filed by Ross A. Kaplan Professional Corporation, Robin G. Lokhorst Professional Corporation, G. Brent Cooper Professional Corporation, Christine H. Pasemko Professional Corporation, Mark Rathwell Professional Corporation, Matthew B. White Professional Corporation, Patrick N. Breen Professional Corporation, Robert T. Fooks Professional Corporation, Shane B. King Professional Corporation, Simon Muller Professional Corporation, Jared Kantor Professional Corporation, Chad Johnson Professional Corporation, Roy David Pierre Klassen Professional Corporation, Michael C.

Kwiatkowski Professional Corporation, Jeffrey W. Moroz Professional Corporation, Jacqueline Halpern Professional Corporation, A. Neil Hutton, Laurie S Kiedrowski and Ryan Franzen on November 8, 2017, Registration Number 171249504; and (

b) the Caveat filed by Kevin P. Weeks Professional Corporation on August 19, 2019, Registration Number 191166648; 30. THAT the value of the caveats registered against title to the Pump Hill Home for the Defendant’s legal fees be added to the amounts owing by the Defendant to the Plaintiff; [ 4 ] On July 29, 2021, the Plaintiff brought an application seeking, inter alia , an order “clarifying” the Judgment and the Judgment Roll. What was at issue was the caveat regarding fees owed to Kevin P. Weeks Professional Corporation (the “Weeks Caveat”).

I note that the parties appeared before me on October 3, 2019 (the “October 2019 Hearing”) to speak to the caveats filed against the Pump Hill House, including the Weeks Caveat. Notwithstanding the prior appearance, the Plaintiff took the position upon retaining her current counsel in June of 2021 that the Weeks Caveat was defective.

She contended that it was necessary, once again, to address the Weeks Caveat because the caveat needed to be discharged in furtherance of the pending sale of the Pump Hill Home on August 17, 2021. [ 5 ] The parties appeared before me for half a day on August 9, 2021 and a full day on August 12, 2021. On those hearing dates, the Plaintiff argued that the Weeks Caveat was invalid because the documents supporting it (

a) were defective and (

b) had been filed after the Judgment, at which time the Defendant no longer had an interest in the Pump Hill Home. The Plaintiff also objected to the amount claimed under the Weeks Caveat. The Weeks Caveat claimed a debt of $30,000, but the Defendant claimed the underlying debt was in fact $150,000. Finally, the Plaintiff alleged that the Defendant’s counsel had made inaccurate and/or incomplete submissions at the October 2019 Hearing. [ 6 ] The Plaintiff sought to have the value of the Weeks Caveat set at $30,000 and to have it discharged upon payment of that amount into Court.

In the alternative, the Plaintiff asked to have the issue of the value of the Weeks Caveat set down for a special application with questioning to take place in advance thereof. She relied upon, inter alia , Rules 9.12 , 9.13 and 9.14 of the Alberta Rules of Court . [ 7 ] At the hearing in August 2021, I concluded that only Rule 9.12 (sometimes referred to as the “slip rule”) applied and that I otherwise had no jurisdiction to revisit the Judgment as I was functus officio .

That being the case, I concluded that further questioning would serve no useful purpose and I declined to order it. [ 8 ] What remains is to determine the costs consequences of the application. Clearly, the Defendant was successful in resisting the Plaintiff’s application. However, he asks for costs considerably beyond the usual party-party costs. [ 9 ] In his brief, the Defendant sets out cost issues as follows:

i) Costs against the Applicant on an enhanced basis arising from the complete dismissal of all aspects of the application brought and pursued by Poole Lawyers despite the “Calderbank Offer to Settle” made August 4, 2021 to the Applicant and ongoing offers from the Defendant’s lawyers to provide a registerable discharge of the Weeks Law fees caveat on payment of $150,000; ii) Costs against the Applicant’s lawyer Jeffrey Poole personally; and iii) Contractual security enforcement costs. [ 10 ] The Defendant directed the vast majority of his written submissions to the issue of costs against the Plaintiff’s counsel personally.

I will begin by dealing briefly with the other issues. Calderbank Offer [ 11 ] As noted above, on August 4, 2021, counsel for the Defendant sent correspondence to counsel for the Plaintiff saying the following: August 4, 2021 Mr. Poole WITH PREJUDICE Calderbank letter offer, same process as you set out below in your email, same entitlement to enhanced costs if refused by your client. [paragraph redacted] Please note our Consent Order Proposal is WITH PREJUDICE and will be spoken to in proceedings before Justice Labrenz. Attached find:

Consent Order, signed by me and ready for entry on your signature. No legal costs to either party as it is a Consent resolution. This offer is open for acceptance up until commencement of the hearing before Justice Labrenz 2:00 pm Monday August 9, 2021. Same form of Order, except as to enhanced costs against your client to be sought before Justice Labrenz if the hearing before Justice Labrenz against the Weeks Caveat proceeds. Communication of acceptance of the Consent Order may be made by email to me. Paul M.

LeClair Lawyer [ 12 ] Although neither party referred to any legal authorities referencing Calderbank offers, I note that the Court of Appeal of Alberta stated in Bruen v University of Calgary , 2019 ABCA 275 at para 7 as follows: Rule 14.59 provides for the doubling of costs when a formal offer to settle an appeal is made, and the party making the offer achieves greater success on the appeal. Informal offers, such as Calderbank offers, are also relevant to costs, although doubling is not automatic or presumed...

Where informal offers are involved, the court has a wide discretion over costs, and there is no “one size fits all” response to nominal offers to settle... [Citations omitted.] [ 13 ] In this case, I find that the offer was reasonable and realistic. Accordingly, I am prepared to give some consideration to it in my award of costs, as discussed further below.

Contractual Costs [ 14 ] On the second issue, the Defendant’s written submissions stated as follows: Costs in excess of $50,000 payable pursuant to the terms of the Demand Promissory Note and Mortgage Charging Land dated July 24, 2019 ... which contractually provides for collections and enforcement costs be paid by the Debtor Richard Berman “as between solicitor and own client on a full indemnity basis”. Should these costs be paid by Mr. Berman despite his agreement to payment, or by Mr.

Poole or his client, who opposed payment despite previous 2019 Order of the Court? [ 15 ] In her written submissions, the Plaintiff characterizes this as a contractual right of indemnity between Weeks Law and the Defendant that is irrelevant to an award of costs in respect of this application. [ 16 ] I agree. The Plaintiff is not a party to the contract in question and its terms are not relevant to an award of costs on this application. Costs Against Mr. Poole Personally [ 17 ] The major issue is the Defendant’s request to award costs against the Plaintiff’s counsel, Mr. Poole, personally. At the hearing, Mr.

Poole requested that he be given an opportunity to seek counsel and make representations if I were inclined to entertain this request. I advised Mr. Poole that I would provide him with the requested notification. In light of the conclusion I have reached, such notification is not necessary. [ 18 ] Both parties referred to the Court of Appeal’s decision in Stoney v 1985 Sawridge Trust , 2019 ABCA 243 , referring in turn to Quebec (Director of Criminal and Penal Prosecutions) v Jodoin , 2017 SCC 26 .

I have taken guidance from the Court of Appeals’s comments at paras 33, 35, 37, 38 and 44: ...this is not a situation in which a trial judge has wide-ranging discretion. The case law has set stringent criteria as to when it may be appropriate for a court to award costs against a lawyer personally. ...

An award of costs against a lawyer is guided, at least in the civil context, by Rule 10.50 of the Alberta Rules of Court , Alta Reg 124/2010 , which states the following: If a lawyer for a party engages in serious misconduct , the Court may order the lawyer to pay a costs award with respect to a person named in the order. [Emphasis in Stoney .] ... Jodoin is clear that costs against a lawyer can be justified only when a lawyer’s acts have seriously undermined the authority of the courts or seriously interfered with the administration of justice (para 29).

Put in a slightly different way, to justify such a costs award, there must be serious misconduct that has the effect of either seriously undermining the authority of the courts or seriously interfering with the administration of justice.

The Supreme Court also provides what are, in our view, indicia or marks of a lawyer’s conduct that would meet this high threshold, namely: 1. “where a court has before it an unfounded, frivolous, dilatory or vexatious proceeding that denotes a serious abuse of the judicial system by the lawyer”, or 2. “dishonest or malicious misconduct on his or her part, that is deliberate.” ( Jodoin at para 29 ) ...

To summarize, the following criteria should guide a trial judge when considering whether to award costs against a lawyer personally: 1) Awarding costs against a lawyer is appropriate only in exceptional circumstances, and then only in the clearest of cases. 2) Such an award will be appropriate only when the lawyer has engaged in serious misconduct, where that misconduct has the effect of either seriously undermining the authority of the courts or seriously interfering with the administration of justice. 3) Instances of serious misconduct having that effect may include: a) “where a court has before it an unfounded, frivolous, dilatory or vexatious proceeding that denotes a serious abuse of the judicial system by the lawyer”, or b) “dishonest or malicious misconduct on his or her part, that is deliberate.” ( Jodoin , at para 29 ) 4) A mere mistake by a lawyer or an error in judgment will not justify such a costs sanction.

There must be “gross neglect or inaccuracy”, or a “marked and unacceptable departure from the standard of reasonable conduct expected of a lawyer” ( Jodoin at para 27 ). [ 19 ] Applying the criteria above, I do not find that an award of personal costs as against Mr. Poole is justified in these circumstances. While the Plaintiff’s applications were ill-founded and misguided, I am not persuaded that the applications involve the type of serious misconduct contemplated by Jodoin and Stoney . I am not satisfied that the applications before me were either deliberately dishonest or malicious.

Therefore, I decline to award costs against Mr. Poole personally. Disposition [ 20 ] It is trite that the Court awards costs pursuant to Rule 10.31, by considering the factors referenced in Rule 10.33. It is well settled, in the ordinary course, that the judge imposing costs has a wide discretion. [ 21 ] One option under Rule 10.31(1)(b)(ii) is to award a lump sum costs award, instead of or in addition to assessed costs. In my view, this is an appropriate case for a lump sum costs award.

I believe that $5000 is an appropriate costs award considering the length of the application and the limited time that the Defendant had to respond to the issues raised. I must also consider the impact of the Calderbank offer. [ 22 ] I conclude that the Calderbank offer supports some increase in the award of costs, but not a doubling. Therefore, I find that it is appropriate to award the Defendant $7500 in costs. [ 23 ] One further point should be mentioned.

An award of costs exceeding $100,000 was made against the Defendant in respect of the Judgment and, to the best of my knowledge, that award of costs remains unpaid to the Plaintiff. I am not prepared to order the Plaintiff to pay the present costs award forthwith while the vastly greater amount of costs remains unpaid. Therefore, I order that the $7500 of costs owing to the Defendant from the Plaintiff be set off against the previous costs award. Heard on the 9 th day of August, 2021 and the 12 th day of August, 2021. Dated at the City of Calgary, Alberta this 19 th day of November, 2021. D.A. Labrenz J.C.Q.B.A.

Appearances: Jeffrey D. Poole Poole Lawyers for the Plaintiff Paul M. LeClair MerGen Law LLP for the Defendant