Warner (County) v Waddell, 2023 ABKB 604

Court of King’s Bench of Alberta Citation: Warner (County) v Waddell 2023 ABKB 604 Date: 20231025 Docket: 2106 00807 Registry: Lethbridge Between: County of Warner No. 5 Applicant - and - Cori Lynn Waddell Respondent - and - County of Warner No. 5, Shane Rodeback, Elodie Rodeback Respondents by Cross-Application _______________________________________________________ Endorsement as to Costs of the Honourable Justice D. V. Hartigan _______________________________________________________

[ 1 ] My original decision in this matter can be found at 2023 ABKB 142 . [ 2 ] I had advised the parties that if they could not agree on the issue of costs, they could provide me with written submissions. They have done so. [ 3 ] The County of Warner No. 5 (“County”) and Shane Rodeback and Elodie Rodenback (“the Rodebanks”) are the successful parties. The sale of the property was upheld, and the Rodebacks were found to be bona fide purchasers. [ 4 ] As always, costs are discretionary. County of Warner Costs [ 5 ] With respect to the County’s costs, my decision is informed by sections 427(2) (

b) and 554.1(1) of the Municipal Government Act , RSA 2000

Chapter M-26 (the “ Act ” ). Section 427 (2) (

b) states, in relation to the payment received for a parcel of land sold at public auction:

(2) The following must be paid first and in the following order: ... (

b) any lawful expenses of the municipality in respect of the parcel; [ 6 ]

Section 554.1(1) reads: 554.1(1) A municipality is entitled to collect lawful costs in all actions and proceedings to which the municipality is a party. [ 7 ] This matter was relatively straightforward. I am of the view that the appropriate costs in relation to this matter are those pursuant to Column 1 of

Schedule C of the Alberta Rules of Court. [ 8 ] Ms. Waddell suggests that the County is not entitled to costs with respect to one adjournment because it was requested by a person who, though interested in the proceedings, was not a party to them. Nonetheless, the cost of that adjournment was borne by the County (and the Rodebacks), and would not have been had Cori Lynn Waddell (“Ms. Waddell”) not contested the lawful sale of the property. The County (and the Rodebacks, see below) are entitled to the costs of that adjournment as well. [ 9 ] The County’s costs can be paid from the proceeds of the sale pursuant to section 427(2) (

b) of the Act . I accept the accounting as provided in the County’s draft Form 44 Order. The Rodebacks’ Costs [ 10 ] The Rodebacks were the other successful party. They were not initially parties to the action between the County and Ms. Waddell. They were brought into the matter as a consequence of being added Respondents in Ms. Waddell’s cross-application against the County. [ 11 ] Ms. Waddell’s cross-application alleged the Rodebacks were not bona fide purchasers at arm’s length. In her Affidavit sworn February 15 th , 2022, Ms.

Waddell stated, “I do not agree that the purchasers are bona fide purchasers for value, nor are they truly arm’s length. I believe that the purchaser, Shane Rodeback is a contractor who often works for the County of Warner No. 5 supplying gravel and excavating and has significant ties with the County office. Theirs was the only offer tendered.” [ 12 ] Elodie Rodeback responded in an Affidavit sworn June 28, 2022 that the excavating company owned by her and her husband had not done any work for the County since 2017. This assertion was not contested by Ms.

Waddell at the hearing, nor was any further evidence of the influence of alleged “significant ties with the County office” presented. [ 13 ] I am of the view that the assertions made by Ms. Waddell against the Rodebacks were at least very close to allegations of impropriety or wrongdoing. Allegations of that nature against individuals are very serious and can impact persons’ reputations and standings in a community. Allegations made with little or nothing to support them other than an assertion based upon an unsubstantiated belief should be discouraged.

In Davis v 850015 Alberta Ltd , 2003 ABPC 68 at para 35 , referred to by Graesser J in College of Physicians & Surgeons (Alberta) v JH , 2009 ABQB 48 , Fradsham PCJ enunciated factors which generally tend to increase costs in circumstances where allegations of morally reprehensible conduct are proven to be groundless by the trier of fact. In this case, there was little supportive information regarding the allegation; the information supporting the allegation was of limited strength and reliability; and Ms. Waddell appears to have taken no steps to verify the information.

I am therefore of the view the Rodebacks’ costs should be enhanced. I therefore award costs at twice (2

X) Column 1,

Schedule C. [ 14 ] The Rodebacks are also entitled to the interest that has accrued on the sale proceeds pending distribution, which can be paid to them forthwith. [ 15 ] The Rodebacks also claim the arrears they owe the Home Owners’ Association for the property. Those arrears have accrued notwithstanding the Rodebacks have been unable to take possession of the property. Unfortunately, I find that such a claim against Ms. Waddell is not before me in this action, and I cannot therefore make that award. [ 16 ] The Rodebacks ask that their costs be paid from the sale proceeds of the property.

Unfortunately, their claim for costs is not contemplated by the Act , and as such the Revenue authorities have priority over their claim. As I understand matters, the Government of Canada’s claim against the property will exhaust the remainder of the proceeds.

[ 17 ] The remainder of the sale proceeds will be distributed to appropriate creditors and any remaining amount will be paid to Ms. Waddell. Written submissions provided July 12, August 23 and August 29, 2023. Dated at Lethbridge, Alberta this 25 th day of October, 2023. D.V. Hartigan J.C.K.B.A. Appearances: Kerry Gellrich, North & Company LLP for the Applicant Rockwell Pollock, Pollock & Company for the Respondent B. Gregor Carleton, Ives & Carleton for Shane Rodeback and Elodie Rodeback