Novosell v Bolster, 2022 ABKB 804

Court of King’s Bench of Alberta Citation: Novosell v Bolster, 2022 ABKB 804 Date: 20221201 Docket: 2003 10414 Registry: Edmonton Between: Sharon Novosell Respondent (Plaintiff) - and - Brian James Allan Bolster and River Valley Road Developments Inc. Applicants (Defendants) - and - Darlene Garrett Applicant (Third Party Defendant) _______________________________________________________ Costs Endorsement of the

Honourable Justice M. J. Lema _______________________________________________________ A. Introduction [ 1 ] The successful applicants for partial

summary judgment striking part of a statement of claim and discharging a certificate of lis pendens seek enhanced costs. [ 2 ] The applicants assert actual legal costs for the application of $31,410 (plus disbursements) and entitlement to costs of $27,506 (plus those disbursements).

That figure would represent 75 per cent of its costs ($15,615) incurred before an exceeded Calderbank offer (“partial discontinuance without costs”) and 100 per cent of its post-offer costs ($15,795). [ 3 ] The plaintiff disputes the defendants’ entitlement to costs on that scale and, in any case, seeks to set off whatever costs are awarded against a costs award in the plaintiff’s favour in earlier proceedings. [ 4 ] I find that costs are payable to the defendants but not on the scale sought. The reason is that this partial-summary-judgment application should not have been brought in the first place.

It did not constitute a proportionate, expeditious and cost-effective proceeding within the meaning of the partial-summary-judgment case law, as explained below. [ 5 ] As for set-off, with no quantification or other crystallization of the earlier costs award, it is premature to address or apply set-off. B. Background [ 6 ] In her action, the plaintiff personal representative had been seeking declarations that eleven parcels of land (or interests therein) belong to the estate and not to either defendant. [ 7 ] As explained in 2022 ABKB 682 , the defendants sought and obtained

summary judgment dismissing the estate’s claim against one of those properties and the discharge of a CLP against it. C.

Positions on costs [ 8 ] Per the defendants, the issues were complex, the plaintiff raised unnecessary arguments that nonetheless had to be addressed, the plaintiff did not beat a Calderbank offer made by the defendants, and Schedule-C-level costs would accordingly be inadequate. [ 9 ] Per the plaintiff, no factual issues had to be resolved, the legal issues were straightforward, the plaintiff had reasonable arguments on the legal issues, the defendants have not proved their actual legal costs, and whatever costs are awarded should be set off against costs awarded to the plaintiff in earlier proceedings ( 2020 ABQB 100 ).

D.

Analysis Factors raised by the parties [ 10 ] I find as follows: • the issues were somewhat complex, but no more than property-related issues often encountered in an estate setting. (In a nutshell, the issues were the scope of a resulting trustee’s duties, whether the asserted trustee breached its duties to the estate beneficiary in purchasing the fee-simple title underlying the leasehold interest asserted to be held in trust, and whether the estate otherwise came to have an interest in the fee-simple title); • the facts were effectively common ground between the parties, with the focus on the legal effects of certain transactions; • concerning (per the defendants) “irrelevant and unnecessary” arguments made by the plaintiffs about an in persona claim against a certain leasehold title and about the law of merger of leasehold and fee-simple interests, with the plaintiff not actually asserting the former argument in her pleadings, the defendants did not have to engage on that issue at all.

And same on merger, on which the defendants provided no material submissions in any case; • the plaintiff did not contest that the defendants made a Calderbank offer (partial discontinuance of the action as against the “Eleventh Lands” on a without-costs basis) or that it was genuine offer of compromise; • the defendants did not provide evidence of their actual legal costs; and • as for set-off, with the plaintiffs having not advanced their costs entitlement in 2020 ABQB 100 (“The [plaintiff] is entitled to costs of this application” – para 96), for example by preparing and submitting a draft bill of costs, it is premature to address or apply set- off.

It appears to be common ground that set-off may be available at some stage, per R. 10.31(4): “The Court may adjust the amount payable by way of deduction or set-off if the party that is liable to pay a costs award is also entitled to receive an amount under a costs award.” For now, the unquantified costs entitlement represents only a potential offset, at least scale-wise.

On whether it is still timely for the plaintiff to quantify the 2020 costs award, see CITF v The Muslim Community of Edmonton Mosque and Muslim House , 2022 ABKB 672 (paras 25-28 ). [ 11 ] If these were the only considerations, I would have directed that the defendants provide evidence of their asserted legal costs and submit them for taxation, so that their reasonableness could be assessed, before deciding (at minimum) whether the claimed 100 per cent recovery of actual legal costs post-offer was warranted.

Should this partial-summary-judgment proceeding have been pursued? [ 12 ] However, another factor exists here, namely, whether this

summary-judgment application should have proceeded in the first place. [ 13 ] On this point, the defendants invoked paragraph 47 of Weir-Jones Technical Services Incorporated v Purolator Courier Ltd , 2019 ABCA 49 : The proper approach to

summary dispositions, based on the Hryniak v Mauldin test, should follow the core principles relating to

summary dispositions, the standard of proof, the record, and fairness. The test must be predictable, consistent, and fair to both parties. The procedure and the outcome must be just, appropriate, and reasonable. The key considerations are:

a) Having regard to the state of the record and the issues, is it possible to fairly resolve the dispute on a

summary basis, or do uncertainties in the facts, the record or the law reveal a genuine issue requiring a trial?

b) Has the moving party met the burden on it to show that there is either “no merit” or “no defence” and that there is no genuine issue requiring a trial? At a threshold level the facts of the case must be proven on a balance of probabilities or the application will fail, but mere establishment of the facts to that standard is not a proxy for

summary adjudication.

c) If the moving party has met its burden, the resisting party must put its best foot forward and demonstrate from the record that there is a genuine issue requiring a trial. This can occur by challenging the moving party’s case, by identifying a positive defence, by showing that a fair and just

summary disposition is not realistic, or by otherwise demonstrating that there is a genuine issue requiring a trial. If there is a genuine issue requiring a trial,

summary disposition is not available.

d) In any event, the presiding judge must be left with sufficient confidence in the state of the record such that he or she is prepared to exercise the judicial discretion to summarily resolve the dispute. [reproduced at para 35 of the defendants’ brief] [ 14 ] Per the defendants, applying those principles: ... the record before the Court supports a

summary determination of the Plaintiff’s claim to the Eleventh Lands. [para 37 of that brief] [ 15 ] The plaintiff did not dispute the availability of

summary judgment: The Plaintiff agrees that the question of the ownership of [the estate’s] interest in the [Eleventh Lands] may be resolved summarily. [its brief at para 24] [ 16 ] But neither party addressed another must-be-explored dimension of

summary-judgment proceedings, namely, whether “the process ... is a proportionate, more expeditious and less expensive means to achieve a just result”, per Hyrniak v Mauldin , 2014 SCC 7 at para 49 . [ 17 ] As the Court of Appeal elaborated in Weir-Jones : ...

summary disposition must be a proportionate, more expeditious and less expensive means to achieve a just result . This third criterion is a final check, to ensure that the use of a

summary judgment procedure (rather than a trial) will not cause any procedural or substantive injustice to either party.

Summary judgment will almost always be “more expeditious and less expensive” than a trial. In the end, if the judge finds that

summary adjudication might be possible, but might not “achieve a just result” there is a discretion to send the matter to trial. This discretion, however, should not be used as a pretext to avoid resolving the dispute when possible. [part of para 21] [emphasis in original] [ 18 ] In DIRTT Environmental Solutions Ltd v Falkbuilt Ltd , 2021 ABQB 252 , Sidnell J. explored this aspect, drawing from Hryniak , Weir-Jones , and number of other Alberta and Ontario cases: ... it is not every case that can be heard in a

summary fashion, or that should be heard as a partial

summary judgment application . In Hryniak , at para 60 , the Supreme Court of Canada noted the tension between those applications where it would not be in the interests of justice to grant a partial

summary judgment and those applications where resolution of a key claim can lead to a more expeditious and just outcome for the parties:

The “interest of justice” inquiry goes further, and also considers the consequences of the motion in the context of the litigation as a whole. For example, if some of the claims against some of the parties will proceed to trial in any event, it may not be in the interest of justice to use the new fact-finding powers to grant

summary judgment against a single defendant . Such partial

summary judgment may run the risk of duplicative proceedings or inconsistent findings of fact and therefore the use of the powers may not be in the interest of justice. On the other hand, the resolution of an important claim against a key party could significantly advance access to justice, and be the most proportionate, timely and cost effective approach . ... After reviewing several cases in Butera [ v Chown, Cairns LLP, 2017 ONCA 783 ] the Court identified some of the difficulties that can arise from partial

summary judgment applications, which I paraphrase as follows:

a) there is a danger of duplicative or inconsistent findings: para 28;

b) a partial

summary judgment application may result in the main action being delayed and may even be used as a delay tactic: para 30;

c) an application for partial

summary judgment may be very expensive : para 31;

d) judges are required to spend time hearing partial

summary judgment applications and may be required to write comprehensive reasons on an issue that does not dispose of the action : para 32;

e) the record available at the hearing of a partial

summary judgment application will likely not be as extensive as the record at trial, therefore increasing the danger of inconsistent findings: para 33;

f) a partial

summary judgment application should be considered to be a rare procedure that is reserved for issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost-effective manner : para 34;

g) a

summary judgment application may result in the disposition of the entire action (unless the judgment is dismissed or only successful in part and partial

summary judgment is granted); on the other hand, a partial

summary judgment application does not finally resolve the action and a trial proceeds on the remaining issues : para 35;

h) it must be asked if: 1) there is any efficiency by granting partial

summary judgment given that the action is proceeding to trial on other matters ; and 2) the claims to be determined on the partial

summary judgment application are intertwined with those proceeding to trial: para 36; and

i) it must be asked if the partial

summary judgment is appropriate in the context of the litigation as whole and will it serve the objectives of proportionality, efficiency and cost effectiveness : para 38. In overturning the partial

summary judgment in Mason , the Ontario Court of Appeal Court found that the appellant’s claim was inextricably linked to the claim against the other defendants: para 23. The Court also noted that a partial

summary judgment needs to achieve some advancement of the action as a whole: para 39. In that case, the Court below noted that granting partial

summary judgment would save little evidence or time at trial: para 39. In Correa v 368753 Alberta Ltd , 2018 ABQB 938 , Justice Ho upheld a Master’s decision dismissing the defendant’s application for partial

summary judgment. The conflicting evidence in that case and the requirement for further viva voce testimony was found, at paras 55 and 56, not to be in the interests of judicial economy: Even if I were to find evidence establishing Correa’s liability on the narrow issue of property taxes, I still would not find it appropriate to grant partial

summary judgment. As already noted, there is significant conflicting evidence and viva voce testimony will be required to address the conflicting positions put forward by the parties ... Therefore , I do not believe that it would be in the interests of judicial economy to find liability on a narrow issue when there still would need to be a lengthy hearing, including viva voce evidence, to determine the amount owed, if any.

This approach was outlined by the Court of Appeal in Ashraf v SNC Lavalin ATP Inc , 2017 ABCA 95 at para 30 , where the Court saw “very little judicial economy” in making a decision before trial because the trial judge still would be required to consider liability on related issues and there was nothing to be gained by bifurcating the assessment of damages . In my view, this is also consistent with the principle enunciated in Hryniak and Windsor that

summary judgment should be granted where it represents “a proportionate, more expeditious and less expensive means to achieve a just result.” Here, I do not consider that to be the case, particularly where the application for partial

summary judgment is grounded in claims outlined in a Counterclaim. There are numerous other claims and issues to be considered in the context of the Amended Amended Statement of Claim and the Amended Statement of Defence, as well as the remainder of the Counterclaim and Defence to Counterclaim. The Ontario Court of Appeal returned to consider the appropriateness of partial

summary judgment in Malik v Attia , 2020 ONCA 787 . ... the Court said that before hearing a motion for partial

summary judgment the motion judge must be determine whether partial

summary judgment will achieve the objectives of proportionate, timely and affordable justice or, instead, cause delay and increase expense: at para 61. To determine whether a partial

summary judgment application will achieve the objectives of being proportionate, timely and affordable justice, Brown JA suggested, at para 62, that the judge ask the following questions of the parties:

1) demonstrate that dividing the determination of the file into several parts will prove cheaper for the parties; 2) show how partial

summary judgment will get the parties case in and out of the court system more quickly; and 3) establish how partial

summary judgment will not result in inconsistent findings by the multiple judges who will touch divided case. While the Ontario Court of Appeal in Malik upheld the partial

summary judgment granted by the court below, it clearly did not agreewith the litigation strategy pursued in that case, as Brown JA said, at para 67: As a matter of process, I strongly disagree with the Seller’s decision to move for partial

summary judgment and refrain fromfiling any evidence of damages and with the motion judge’s acquiescence in hearing the motion so framed. That said, it is not aground for appellate intervention. To set aside the judgment solely on the basis that the process added cost and delay would, in its ownturn, only add more cost and delay. Distilling the comments and concerns from the cases referred to above, in my view, I must answer the three main questions, set outbelow, in the affirmative to find that partial

summary judgment is an appropriate application to pursue in this case:

a) Can the issue to be determined on a partial

summary judgment application be bifurcated from the remainder of the issues that willproceed to trial? The determination of whether the issue can be bifurcated should be considered with the answers to the following fourexploratory questions in mind: (

i) Is the issue to be determined on the partial

summary judgment application intertwined with those proceeding to trial? (ii) Where there is more than one defendant, is the issue to be determined on the partial

summary judgment application inextricablylinked to the claim against the other defendant(s)? (iii) Is the record available on the issue to be determined at the partial

summary judgment application as extensive as itwould be at trial? (iv) Is there a danger of duplicative or inconsistent findings of fact or any res judicata on issues to be determined at trial?

b) Will the partial

summary judgment application advance the action as a whole? To access whether there will be anyadvancement, the following two exploratory questions can be asked: (

i) Will the partial

summary judgment application achieve efficiencies in the litigation given that other issues will beproceeding to trial? (ii) Will the partial

summary judgment application deal with the issue expeditiously and not cause unreasonable delay to themain action?

c) Will partial

summary judgment significantly advance access to justice, and be the most proportionate, timely and cost-effective approach? [paras 20, 23, 25, 26, and 32-35] [emphasis added] [19] After applying those principles to the facts and issues at hand (paras 37-67), Sidnell J. ruled against granting partial

summaryjudgment: The result of the analysis I have undertaken is that proceeding with a partial

summary judgment application would cause problemsfor the trial and would not be beneficial to the parties. These outcomes would negatively affect Mr. Loberg’s access to justice. For all of the above reasons, I find that the proposed partial

summary judgment is not the most proportionate, timely and cost-effective manner in which to address the issues. As a result, the appeal from Master Mason is dismissed. [paras 68 and 69][emphasis added] [20] See also Oil Sands Energy Holdings Inc v Golosky Holdings GP Inc, 2010 ABCA 396: This suit was not completely dismissed summarily, nor did the respondents so move. So most or all of its causes of action must goto trial. Therefore, it is hard to see what practical utility would flow to any party from removing certain passages from thestatement of claim, especially ancillary passages. Cf. the remarks in Nat.

Mfg. Co. v. Hounget (SK QB), [1922] 3W.W.R. 379, 381 (Sask.), and in Arctic Star Lodge (N.W.T.) v. N.H. Ins. Co. (NWT SC), [1989] N.W.T.R. 140, 143.The remarks in both cases were about striking out, but seem even more apt for

summary dismissal. Giving

summary judgment for part ofa plaintiff’s claim, and summarily dismissing part of it, do not necessarily involve identical considerations. The lack of utility of partial dismissal is exacerbated by the time elapsed since commencement of the suit, without any discovery,whether of records or oral. [paras 14 and 15] [emphasis added] [21] And a paper by Brown JA (ONCA) for the 38th Annual Civil Litigation Conference (County of Carleton Law Association --2018) entitled “Hamlet’s Dilemma: To

Summary Judgment or Not to

Summary Judgment? Five Reflections on How to: “Take Armsagainst a Sea of troubles, and by opposing END them; to die, to sleep no more”, including this reflection (#5): Does a

summary judgment motion that fails to END the sea of litigation troubles further the goals of a rational civil justicesystem as set out in Rules 1.04(1) and (1.1)? The creature called “partial

summary judgment”. Some conceptual reflections We have yet to adopt a consistent use for the term “partial

summary judgment”. To date, the term has been used to describe the

following different scenarios: Scenario 1 : The sole defendant moves to dismiss the claim against it by asking the judge to determine one of several defences - usually a limitation defence - which, if established, would end the action . A judicial practice has emerged in some places that even where

summary judgment is not granted, the motion judge makes a partial, “final” pronouncement on the availability of the limitation defence; Scenario 2 : One of several defendants moves for the dismissal of the claim as against it alone , leaving the plaintiff free to pursue the remaining defendants. This is the sense in which the Supreme Court of Canada used the term “partial

summary judgment” in Hryniak v. Mauldin , 2014 SCC 7 , at para. 60 . My co-panelist, Justice Myers, engaged in an extensive consideration of that kind of partial

summary judgment in Mason v. Perras Mongenais , 2018 ONSC 1477 ; Occasionally, the plaintiff is faced with a parade of successive partial

summary judgment motions by the remaining defendants; Scenario 3: A plaintiff or defendant asks the court to determine an issue within a claim – i.e., one of the several constituent elements of a claim or defence. No “judgment” results, in the sense of a final disposition within the meaning of Rule 1.03.

All claims remain; no party exits the lawsuit . [emphasis added] [ 22 ] Applying the above principles, I find that, in hindsight, this partial-summary-judgment proceeding should not have proceeded: • it did not dispose of the action or even a material subset of it. (The plaintiff’s pursuit of ten other properties remains alive and apparently headed for a full trial); • the defendants did not point to any spillover effect from this judgment e.g., that answering these resulting-trust points will assist in resolving issues arising from any of the other properties; • the defendants did not otherwise demonstrate that resolution of these issues will materially reduce trial time or, in any case, that exploring these “Eleventh Lands” issues in piecemeal fashion was cost-effective or otherwise a practical exercise, compared to having these points examined and resolved at trial; • their evidence did not extend to the current circumstances surrounding the lands in question or, in any case, show urgency or any need for the plaintiff’s claims against those lands to be resolved by any particular deadline or, in any case, before the trial; • in theory, the defendants could bring another application, this time for determination of the issues surrounding the tenth property, and, after that, for those on the ninth, and so on.

Again, they did not justify why a piecemeal approach was required or advisable here; and • the parties did not discuss the overall trial timelines here. But necessarily the time, energy, and money devoted to this application could have been devoted to the trial and trial preparation, even if not accelerating those timelines. [ 23 ] Both parties should have raised and addressed the proportionality, “expeditiousness” and expense factors mandated by Hryniak and explored in the above cases. [ 24 ] If they had, I would have declined to launch the

summary-judgment process in light of the noted considerations. [ 25 ] How does that affect the costs exercise?

Schedule C appropriate here [ 26 ] The appropriate consequence is to limit the defendants to

Schedule C costs (albeit doubling one element, as discussed below) i.e., decline to provide greater reimbursement for an application that should not have proceeded. [ 27 ] Anchoring costs on

Schedule C has a history in this litigation. [ 28 ] The central thrust of predecessor actions by the plaintiff against these defendants, as in the plaintiff’s current action, was that the defendants are holding the eleven properties in trust for the Roy Bolster estate. The requested relief was then, and is now, a declaration that that was (and is) so i.e., no particular monetary relief requested. [ 29 ] In those predecessor actions, the plaintiff was successful in obtaining further accounting relating to the eleven properties in question and associated relief ( 2019 ABQB 18 ). [ 30 ] Costs-wise, I found that Column 1 of

Schedule C applied ( 2019 ABQB 164 at paras 31-34 ). [ 31 ] That approach squares with the absence of monetary relief being sought. Per ss 1(4) of Division 1 of

Schedule C: Unless the Court otherwise orders, (

a) when a remedy is given in a judgment or order other than or in addition to the payment of money ... costs must be assessed according to the higher of Column 1 of the tariff in Division 2 [i.e., the

Schedule C tariff], and the scale that would have applied if the other remedy had not been given or sought. [ 32 ] With no monetary relief being sought in the predecessor litigation, Column 1 was the default column: see SFM v MRM , 2020 ABQB 401 .

[ 33 ] So too here, with no monetary relief being sought in the plaintiff’s current action. [ 34 ] As noted, the Court can order otherwise. [ 35 ] But I find that, for the reasons outlined, this partial-summary-judgment application should not have been brought or at least proceeded. (Again, neither party raised the proportionality-expeditiousness-cost-effectiveness test prescribed by Hryniak .) [ 36 ] The applicable Column 1 elements here are: Item 4 (Notice to admit facts) $270 Item 5 (Preparation for questioning) $675 Item 5(2) (First ½ day of questioning) $675 Item 5(2) (Portion of additional ½ day)) $675 Item 8(1) (Written-brief application) $1,350 [ 37 ] As noted, the defendants made a partial-discontinuance-without-costs offer here.

It was made between questioning and the application. [ 38 ] In retrospect, the plaintiff should have accepted that offer, with the main judgment here granting the defendants the relief proposed in that offer i.e., removal of the Eleventh Lands from the statement of claim and discharge of the CLP. [ 39 ] The appropriate consequence is to double the Item 8(1) element i.e., to $2,700. [ 40 ] As a result, the total

Schedule C costs are $4,995. [ 41 ] I also approve the defendants’ disbursement claim of $534. [ 42 ] The total approved costs are thus $5,529. [ 43 ] The plaintiff must pay those costs by no later than December 31, 2022. Comparison to question-of-law exercise [ 44 ] I note the potential application of Rule 7.1 (application to resolve particular questions or issues). [ 45 ] However, even if the defendants had proceeded under that rule, I believe the core conclusion here (application inadvisable) would have been the same. [ 46 ] Here I invoke the analysis under “Splits Rarely Work”, part of “B.

Splitting a Suit” in the commentary to Rule 7.1 in the Alberta Civil Procedure Handbook -- 2021 (pp 7-4 to 7-6). Heard by way of written submissions received on the 28 th of October and 4 th of November, 2022 Dated at Edmonton, Alberta this 1 st day of December, 2022. M. J. Lema J.C.K.B.A. Appearances: Françoise H. Belzil Biamonte LLP Barristers & Solicitors for the Applicants

Roger C. Stephens Stephens Mah Toogood Barristers & Solicitors for the Respondent