Ghebremeskel v Tesfu, 2023 ABKB 356

Court of King’s Bench of Alberta Citation: Ghebremeskel v Tesfu, 2023 ABKB 356 Date: 20230614 Docket: 4801 146990 Registry: Calgary Between: Tsgeweini Ghebremeskel aka Tsegeweini Ghebremeskel aka Tsgeweini Tesfu Plaintiff - and - Issak Tesfu, 1190410 Alberta Ltd., 1345437 Alberta Ltd., A-Plus Building Maintenance Ltd. Defendants - and - Tsgeweini Ghebremeskel aka Tsegeweini Ghebremeskel Plaintiff - and - Leya Gebrehewet and Daniel Berhe Defendants

_______________________________________________________ Endorsement of the Honourable Mr. Justice W.P. Sullivan _______________________________________________________ [1] On the 7th of July, 2022 I issued an Endorsement in this matter with respect to costs. The costs order followed a judgment I delivered on April 30th, 2021 and reported as Ghebremeskel v Tesfu, 2021 ABQB 341. My costs order is reported at Ghebremeskel vTesfu, 2022 ABQB 469. [2] As indicated in my Endorsement of July 7th, 2022, this litigation was long and protracted and in para 5 I stated: There is no doubt Ms.

Ghebremeskel availed herself of court processes. She filed her Statement of Claim on January 26, 2011 and filedamended, and further amended, Statements of Claim on April 6, 2011, September 27, 2012, and March 8, 2013. She also filed 26certificates of lis pendens against properties registered in the names of Mr. Tesfu and his various corporate entities and against Mr.Berhe’s and Ms. Gebrehewet’s properties.

The 22-page court procedure card indicates there were 40 contested applications, 44 affidavits,19 appointments for questioning, 17 concise letters, and 136 orders of the court or similar type directions, much of which was overseenin case management that commenced in October 2012. [3] After a discussion with respect to costs I ordered the following at para 31: I find in the totality of the unusual circumstances of this family and their intermingled affairs that resulted in this complex litigation, thata global costs award of $120,000 is appropriate. I propose that Mr. Tesfu receive $60,000, Mr.

Berhe $35,000, and Ms. Gebrehewet$25,000 of this total. [4] Since my order with respect to costs Mr. Tesfu has repeatedly requested assistance from the Court, with respect to the issueof the Plaintiff’s failure to pay the $60,000 costs imposed on her from the funds in trust at the office of counsel for the Plaintiff, Ms.Ghebremeskel. There is an issue with respect to the disbursement of funds and the apportionment of the funds held in trust at Ms. Stock’soffice, plus the partition and sale of the matrimonial home.

Nonetheless, between the sale of the matrimonial home and the funds in trustthere are substantial funds available to pay the costs of Mr.

Tesfu. [5] Rule 10.29 General Rule for Payment of Litigation Costs 10.29(1) A successful party to an application, a proceeding or an action is entitled to a costs award against the unsuccessful party, andthe unsuccessful party must pay the costs forthwith, notwithstanding the final determination of the application, proceeding or action … [6] In Chernick v Spodek, [1997] OJ No 118, in the General Division of the Ontario Court of Justice, Justice Pitt discussed themeaning of the word “forthwith” in relation to a costs order, at paras 13-15: Although the parties provided no authority dealing with the meaning of "forthwith" and the implications of failure to comply with costorders, I refer to the following.

Forthwith is defined in Black's Dictionary, 4th ed., as follows: Forthwith. Immediately; without delay, directly, hence within a reasonable time under the circumstances of the case; promptly and withreasonable dispatch. State ex rel. Board of Education of City of Tulsa v. Morley, 168 Okl. 259, 34 P. 2d 258, 261; 1 Chit. Archb. Pr.(12th Ed.) 164. Within such time as to permit that which is to be done, to be done lawfully and according to the practical and ordinarycourse of things to be performed or accomplished. Harris v. Stewart, 187 Miss. 489, 193 So. 339, 342. The first opportunity offered.Abbott v.

State, 117 Neb. 350, 220 N.W. 578, 579. In Munro v. Canada (Attorney General), (ON SC), [1994] O.J. No. 2808, DRS 95-02845, Borins J. said: I agree with the observation of Montgomery J. in Canadian Express Ltd. v. Blair (1992), (ON SC), 13 C.P.C. (3d) 375at 377, that there is a general principle "that a cost order must be paid before [a] party can proceed further the court." [7] In Pittigilo v Pittiglio, 2015 ONSC 3603, Justice McDermot of the Ontario Superior Court of Justice speaking of forthwithsaid this at para 32: I had ordered that costs be payable forthwith. Ms.

Holzman requested a date that these costs be payable by because she is afraid thatthere will be a disagreement as to what is meant by "forthwith." Forthwith means immediately. Costs payable within five business days. [8] And in the Alberta Court of Appeal and Hong Kong Bank of Canada v Scheckter, [1991] AJ No 445 (Belzil, Foisey andFraser, JJ.A.), the Court stated the following: The Respondents shall have costs in any event calculated on Column 6 payable forthwith. Forthwith meaning within thirty (30) days.

[ 9 ] It is clear to me that the plain meaning of the words in rule 10.29 is that costs are to be paid immediately and that practically courts seem to allow up to a month for that to occur. It is obvious that that time has expired and expired a long time ago. Therefore, I direct that the funds held that are owing by costs to the Defendant, Mr. Tesfu, be paid immediately. That being before 3:00 p.m. on Friday the 16 th of June, 2023. Dated at the City of Calgary, Alberta this 14 th day of June, 2023. W.P. Sullivan J.C.K.B.A. Appearances: Elizabeth Stock for the Plaintiff – Tsgeweini Ghebremeskel Nelson Osamudiamen for the Defendant – Issak Tesfu