Chisholm v Boardwalk General Partnership, 2021 ABQB 991

Court of Queen’s Bench of Alberta Citation: Chisholm v Boardwalk General Partnership, 2021 ABQB 991 Date: 20211214 Docket: 2103 05243 Registry: Edmonton Between: Melissa Chisholm Appellant - and - Boardwalk General Partnership and Residential Tenancy Dispute Resolution Service Respondents _______________________________________________________ Endorsement on Costs of the Honourable Mr. Justice John T. Henderson _______________________________________________________ [ 1 ] On November 19, 2021, I dismissed the appeal brought by Ms.

Chisholm from a decision of the Residential Tenancy Dispute Resolution Service (RTDRS) dated April 7, 2021. The RTDRS decision gave judgement in favour of Boardwalk General Partnership (Boardwalk) against Ms. Chisholm in the amount of $2,606.78 for arrears of rent, utilities and parking. The amount of the judgment also included $75 for costs. [ 2 ] Boardwalk now seeks costs in relation to the appeal. In his letter of November 24, 2021, Counsel for Boardwalk seeks costs in the amount of $4,556.25. This amount represents 75% of double Column 1 of

Schedule C of the Alberta Rules of Court. Boardwalk seeks 75% of Column 1 on the basis that Rule 10.42(2) restricts costs to that level where an action is brought in Queen’s Bench but where the amount sued for is within the jurisdiction of the Provincial Court. Double costs are sought because two Calderbank offers were made by Boardwalk in an attempt to settle the matter before the appeal. The dismissal of the appeal resulted in Ms. Chisholm owing more that the amount in the Calderbank offers.

[ 3 ] A successful party is presumptively entitled to costs.

Schedule C to the Rules of Court is often used as a guide in determining costs, although more recently the Court of Appeal has provided guidance that suggests that costs well above

Schedule C can be appropriate in certain circumstances. For example, in McAllister v Calgary (City), 2021 ABCA 25 the Court of Appeal approved of a 40% to 50% partial indemnification guideline for costs in appropriate cases. However, McAllister also made it clear that the Court has a wide discretion in awarding costs and the Court may award a lump sum, instead of awarding an amount under

Schedule C or a percentage of indemnity costs. At para 25 and 27 the Court observed: Thus, in making a costs award under 10.31(1)(a), as in this case, the court is provided with a menu of orders it may make with respect to costs. Rule 10.31(3)(

a) expressly provides that “all or part of reasonable and proper costs” may be ordered, “with or without reference to

Schedule C.” This suggests significant discretion on the part of a trial judge in implementing a reasonable and proper costs award and would appear to clearly permit an order for a lump sum percentage of legal costs. Rule 10.31(3)(

d) expressly permits such a costs award. Rule 10.31(3)(

b) permits the court to make an order directing the unsuccessful party to pay the successful party an amount equal to a multiple, a proportion or a fraction of an amount set out in any column of the Tariff of Recoverable Fees in

Schedule C. ...................................... What comes out of this analysis of the Rules is that a costs award made with reference to

Schedule C is only one of several options open to a court in awarding costs to a successful party and that awarding a percentage of assessed costs is expressly authorized. [ 4 ] Where a Calderbank offer is made and the amount of the final judgment is in excess of the amount of the offer then the costs will generally be doubled, unless there are “special circumstances” that the general rule should not apply. [ 5 ] In assessing the amount of costs that should be payable I need to consider the factors outlined in Rule 10.33. In that regard I observe that: a. Boardwalk was entirely successful on the appeal; b.

The amount claimed was very small. The Appellant sought a 30% abatement of rent for a portion of the tenancy period, although that amount was never quantified in the evidence before me, in part because the RTDRS transcript was never provided to me. However, the rent was $1,079 per month starting in April 2019. So, if the claim period was, for example 1 year then the amount of the claim would be $3,884. What is apparent to me is that Ms. Chisholm was attempting in the litigation to avoid payment of the rent that was outstanding. Thus, I consider that the real amount at stake was approximately $2,606,78; c.

The issues at stake had no particular importance; d. There was no complexity to the issues; e. There was no apportionment of liability; f. Neither party took any steps to shorten the proceedings. g. I also consider the following circumstances: • Ms. Chisholm is a person who suffers from a disability and is on AISH. She is a person of very limited means. • Ms.

Chisholm is and was throughout a self-represented litigant. • This is an appeal from the RTDRS which is an administrative tribunal that was established using procedures to permit self- represented litigants to have access to justice in a speedy and economical way where the amounts at stake would not justify litigation in the Courts. • The costs awarded by the RTDRS were $75. • The Calderbank offer dated September 24, 2021 expressly told Ms.

Chisholm that if she did not accept the offer which reduced the outstanding rent to $2,000 then Boardwalk would seek costs of $7,087.50. [ 6 ] What is striking about this appeal is that the amount of costs being sought are almost twice as great as the amount at stake in the litigation. The costs sought in the Calderbank offer were almost three times the value of the amount in issue. [ 7 ] Formal offers of settlement are important tools that can be used when they represent a genuine attempt at resolution.

From Boardwalk’s perspective the offer was genuine in that they were prepared to accept a reduction of $346.78 from the amount of the claim. Boardwalk also agreed to offer payment terms of $130.00 per month which Ms. Chisholm had agreed to before she commenced the action. In this sense the offer of settlement was genuine. [ 8 ] However, in a case where only $2,600 is at stake, and where the issues have no complexity and where the opposing party is disabled and close to impecunious, costs at the level sought by Boardwalk are simply not appropriate.

If costs at that level were granted it would have a chilling effect on those persons who seek to appeal from a decision of the RTDRS. This would render appeals out of reach of virtually all tenants who appear before the RTDRS. [ 9 ] Boardwalk was the successful litigant. They are entitled to costs. When I consider all of the circumstances, particularly the amount in issue, I conclude that $150 would be an appropriate award for costs. Since Boardwalk made a successful Calderbank offer, the cost award should be doubled to $300. [ 10 ] I award Boardwalk costs of the appeal of $300.

Heard on the 19 th day of November, 2021. Written Submissions received December 8, 2021. Dated at the City of Edmonton, Alberta this 14 th day of December, 2021. John T. Henderson J.C.Q.B.A. Appearances: Melissa Chisholm for the Self-Represented Litigant Jeremy Wiebe for the Respondent Boardwalk General Partnership Residential Tenancy Dispute Resolution Services No appearance