Randhawa v Rehill, 2023 ABKB 202

Court of King’s Bench of Alberta Citation: Randhawa v Rehill, 2023 ABKB 202 Date: 20230406 Docket: 2201 09306 Registry: Calgary Between: Jagroop Randhawa, Trilochan Singh Sekhon, Neosome Lending Ltd. and 2290789 Alberta Ltd. Applicants - and - Buta Singh Rehill, Rehill Holdings Ltd, Poonamjeet Kaur Toor, 2290808 Alberta Ltd. and Prabsharanjit Singh aka Sunny Toor Respondents - and - Ronald S. Girvitz and Ronald S. Girvitz Professional Corporation Respondents ______________________________________________________ Reasons for Decision on Costs of the Honourable Justice C.M. Jones _______________________________________________________

[ 1 ] This matter came before me in commercial chambers. On March 1, 2023, the Applicants requested a thirty to forty-five minute emergency hearing the next day. The matter involved an aborted shot-gun buy-sell transaction. The Applicants sought the following relief: (

a) An Order declaring the Applicants to be in compliance with the terms of an Order of this Court filed February 8, 2023. That Order set out procedures governing implementation and completion of a shot-gun buy-sell protocol (Protocol); (

b) An Order declaring that the shot-gun buy-sell transaction contemplated in the Protocol had closed and that, as consequence thereof, the Applicants were the owners shares of 2329716 Alberta Ltd. (232); (

c) An Order directing counsel for the Respondents to deliver all closing documents and to comply with all required steps to confirm the closing of the transaction contemplated in the Protocol (Transaction); (

d) Abridgement of the time for service of the Applicants’ Application; and (

e) Full indemnity costs against the Respondents and against their counsel. [ 2 ] The Applicants alleged conduct which was oppressive and unfairly prejudicial to their interests as shareholders and creditors of 232. [ 3 ] It was not possible to hear the matter the next day but I agreed to allow the Applicants to come before me on March 3, 2023. [ 4 ] The Applicants believed they had complied with the requirements of the Protocol and were entitled to become the shareholders of 232.

In essence, they wanted an Order compelling the Respondents to perform a contract which the Applicants asserted they were entitled to enforce. [ 5 ] They alleged that the Respondents refused to close the Transaction. [ 6 ] The Applicants alleged misconduct on the part of corporate counsel for the Respondents, seeking full indemnity costs against him. [ 7 ] The Respondents opposed the Applicants’ Application, claiming that resolution of the issue of compliance or non- compliance with the terms of the Protocol likely required viva voce evidence. [ 8 ] The Respondents opposed the Application, in part on the basis that the matter would require more than thirty to forty-five minutes to properly address.

The conduct of corporate counsel for the Respondents was put in issue by the Applicants and would require some extensive argument and analysis. It would be necessary to hear argument relating to the

interpretation of the Protocol and what exactly was required to be done, by whom and by when, in order to trigger an obligation to close the Transaction. [ 9 ] When the parties appeared before me I advised the Applicants that: (

a) I thought it inappropriate that this matter be placed on the commercial list; (

b) The commercial list does not confer preferential access to a forum for the resolution of civil disputes that just happen to engage issues of contract

interpretation and performance; (

c) There was no justification for elevating the Applicants’ request for an expedited hearing above those of other litigants who allege default on the part of other parties to their contracts, who have no expectation of being permitted to bring their matter forward on the commercial list and who are expected to pursue the normal civil litigation process, seeking damages and costs as appropriate. [ 10 ] I dismissed the Applicants’ application and invited submissions regarding costs.

I have reviewed the parties’ written submissions. [ 11 ] The Respondents claim they should be entitled to full indemnity costs, which they claim are $5,946.35. Alternatively, they seek costs of $4,130 computed in accordance with Column 4 of

Schedule C to the Alberta Rules of Court ( Rules ), based on a value for the Transaction of at least $1.7 million.

Those costs, identified as line item 8(1) (costs Application requiring written briefs) would be multiplied by 1.75 to achieve some measure of enhancement, which the Respondents believe is justified in the circumstances, given the outcome of the Application. [ 12 ] The Respondents refer to the considerations underlying a costs award in Rule 10.33, which they argue are relevant here, including success (10.33(1)(a)); value of the Transaction (10.33(1)(b)); complexity (10.33(1)(d)); the Applicants’ refusal to acknowledge that the Application was dismissed (10.33(2)(b); the lack of necessity of the Application (10.33(2)(d)) and the assertion that the Respondents made a reasonable offer in relation to the settlement of costs (10.33(2)(h)). [ 13 ] In order to resolve this matter without further judicial resources being expended, the Applicants make an offer of what they refer to as enhanced costs of $2,973.18.

They note that Column 4 costs of $2,360 would apply in respect of a monetary amount of $1,700,000. [ 14 ] They note, however, that if it were not appropriate to attach a monetary value for purposes of determining the appropriate Column, application of Column 1 to item 8(1) would give rise to costs in the amount of $1,350. They assert that they offered to pay this amount but the Respondents declined this offer. [ 15 ] Citing the decision in McAllister v Calgary (City) , 2021 ABCA 25 , the Applicants assert that there is no justification for a

significant departure from the normal indemnification of approximately 40% - 50% of solicitor-and-own-client costs in favour of the successful party. The Respondents’ request for costs of $4,130 would amount to 69% of the Respondents’ alleged solicitor-and-own- client costs. [ 16 ] Under the circumstances I agree with the Applicants’ suggestion that they pay costs in the aggregate amount of $2,973.18. [ 17 ] No further enhancement is appropriate.

While I dismissed their Application and directed that it not be placed back on the commercial list, I do not find the Applicants’ attempts to resolve the matter to have been blameworthy. [ 18 ] Though alerted to the fact that their Application may not be capable of being heard and dealt with in thirty to forty-five minutes, the Applicants were permitted to come before the Court. Though their Application was dismissed, there was no finding on the merits that their claims lacked substance or validity.

It was dismissed because the Court determined (1) that, considering all of the circumstances, it would be inappropriate for it to be heard on the commercial list and that (2) a proper evaluation of the relief sought in the context of the factual matrix before the Court was not possible in thirty to forty-five minutes. [ 19 ] The Applicants were advised to pursue their requests through the normal civil litigation process which might, as required, entail Questioning on Affidavits and a viva voce hearing or trial. [ 20 ] I will await a form of Order reflecting the costs award in this Decision.

Heard on the 3 rd day of March, 2023. Dated at the City of Calgary, Alberta this 6 th day of April, 2023. C.M. Jones J.C.K.B.A. Appearances: Kate P. R. Millar and Laurie Livingstone Dentons Canada LLP for the Applicants Robert J. Stack Wilson Laycraft for the Respondents