MYW v DTW, 2023 ABKB 467

Court of King’s Bench of Alberta Citation: MYW v DTW, 2023 ABKB 467 Date: 20230814 Docket: 4801 179032 Registry: Calgary Between: MYW Plaintiff - and - DTW Defendant _______________________________________________________ Reasons for Decision on Costs of the Honourable Justice C.M. Jones _______________________________________________________ Introduction [ 1 ] This is a costs decision.

It devolves from my Chambers decision to grant the Mother’s application for, inter alia , partition and sale of the parties’ matrimonial home (Chambers Decision). [ 2 ] In their appearance before me, the parties consumed more than their share of time allocated for a morning Chambers application.

The need to ration the amount of Chambers time available to the parties meant that most of the technical aspects of what would become my Order dealing with the valuation, listing and sale of the property (Implementation Order) were not settled in morning Chambers. [ 3 ] In an effort to prevent further erosion of time available to other applicants, once the direction for partition and sale was made

I directed the parties to withdraw and attempt to work out the terms of the Implementation Order. [ 4 ] Ultimately, I issued two Orders. The first Order, dated February 16, 2023, granted Mother’s application (First Order). It also directed the parties to make efforts to agree on the terms of the Implementation Order. [ 5 ] The First Order also provided that: The Plaintiff [Mother] is entitled to her costs based on

Schedule C to the Alberta Rules of Court . If the parties cannot agree on the amount of the costs, they contact Justice C.M. Jones to speak to this issue as well. [ 6 ] I directed that

Schedule C would apply to the determination of costs in light of paragraph [59] of the decision of the Court of Appeal in McAllister v Calgary (City) , 2021 ABCA 25 . It noted that

Schedule C can be particularly useful and efficient in high volume interlocutory matters such as chambers applications. Those observations are applicable here. [ 7 ] The Father appears to have been self-represented throughout some of the “out of court” discussions leading to a decision on the terms of the Implementation Order. In his submissions, he attempted to re-litigate the merits of his position, as advanced before me in Chambers, when he had representation.

Thus began an extensive back and forth between the parties, and me, in an attempt to finalize the Implementation Order. [ 8 ] I do not fault the Father for his actions. He made what appears, at least from my perspective, to have been a good faith effort to respond to my directions. [ 9 ] The Mother, and her counsel, were, in my view, responsive to the Father’s concerns when it came to settling the terms of the Implementation Order. They made reasonable accommodation in response to his requests. [ 10 ] I ultimately adopted the form of Order submitted by the Mother’s counsel substantially as it was presented to me.

The Parties’ Positions on Costs The Father’s Position [ 11 ] The Father’s position is straightforward. My Orders resulted from a contested morning Chambers application. As provided for in the First Order, costs were to be determined in accordance with

Schedule C to the Rules. Column 1 is applicable and costs in the amount of $675 should be awarded to the Mother. The Mother’s Position [ 12 ] The Mother provided more lengthy costs submissions. Those submissions consist of just over five pages of argument and nine different exhibits. [ 13 ] The Father criticizes the length of those submissions. The Mother’s counsel cannot be faulted for providing lengthy submissions. I did not impose a limit on the extent of any costs submissions.

Costs submissions gave him the opportunity to put his client’s best foot forward and he took advantage of that opportunity. [ 14 ] The Mother notes the Court’s ability to assess costs on a number of bases: Rule 10.31. Citing the decision of the Alberta Court of Appeal in Barkwell v McDonald , 2023 ABCA 87 and McAllister , the Mother would, but for my direction to utilize

Schedule C, advocate for an award of costs in the range of 40% to 50% of costs reasonably incurred in the proceeding. [ 15 ] The Mother also notes the recent decision of Justice Graesser in Grimes v Governors of the University of Lethbridge , 2023 ABKB 432 . In that case, the learned Justice stated as follows: In other words, departing from

Schedule C for party party costs requires some exceptional circumstances. Complexity and misconduct during the litigation process have been found to be “exceptional” in the past. This factor will have to be analyzed on a case-by-case basis. [ 16 ] The Mother argues that Justice Graesser’s decision is incorrect and should not be followed. She argues that Justice Graesser’s view that Rule 10.31 does not differentiate between judges and review officers fails to differentiate between the power of a judge to set costs employing a basis other than

Schedule C and the limits on an assessment officer’s authority to award costs, but only with reference to amounts in

Schedule C. [ 17 ] In challenging Justice Graesser’s reasoning, the Mother argues that the authority of the Court to award costs is nowhere near as circumscribed as that of an assessment officer. An assessment officer is limited to an award of “reasonable and proper costs”: Rule 10.41(1) while the Court may award “any amount the Court considers to be appropriate in the circumstances”: Rule 10.31(1)(b). [ 18 ] The Mother argues that Justice Graesser’s reasoning at paragraphs 62 to 65 of his decision in Grimes rests on the erroneous conclusion that the costs provisions of the Rules treat judges and assessment officers alike, at least insofar as their authority to follow or depart from

Schedule C is concerned. She argues that the Rules do not do this and this reasoning therefore contains a legal error. [ 19 ] She concludes on this point by noting that Justice Graesser’s reasoning cannot derogate from the Court of Appeal’s statement at paragraph 53 of Barkwell that “Schedule C is not a mandated default method” and that the reasoning in Grimes should therefore be considered unpersuasive.

[ 20 ] The Mother’s challenge to the reasoning in Grimes provides an invitation to revisit McAllister and Barkwell , and the antecedent cases in this Court and the Court of Appeal which provided background to those two decisions. That is an invitation which I decline. [ 21 ] I had understood that the utility of

Schedule C, the view that it should not be viewed as the default basis upon which to determine costs, that there should be no automatic recourse to it, the notion that it should be considered, with all of its inherent frailties and shortcomings, only as one possible basis upon which to determine costs, its appropriateness in certain routine interlocutory matters and the overring objective of ensuring that party party costs represent somewhere in the neighborhood of 40% to 50% of reasonable solicitor client costs, were unambiguously settled in McAllister . [ 22 ] Justice Graesser provides a thorough analysis of why he believes these issues where not so unambiguously settled in McAllister . [ 23 ] Clearly, Grimes engages a particular perspective on the Court of Appeal’s reasoning in McAllister and precisely what limits that Court intended to place on the utility, if any, of

Schedule C as a “go to” or “default” method of determining costs. [ 24 ] Given Justice Graesser’s take on McAllister and Barkwell , what the Court of Appeal really meant to say may need to be resolved through more fulsome analysis and articulation. In my view, if that task of clarification does indeed need to be performed it needs to be undertaken by the Court of Appeal.

Leaving it to the Court of King’s Bench will result innumerable diverse decisions which may only muddy the waters. [ 25 ] Further, according to the Mother, for purposes of a costs award in respect of a Chambers application, it becomes necessary to resolve a perceived ambiguity between the role of an assessment officer and the role of a Court. [ 26 ] I mention these issues in passing only because the Mother raises them in her costs submissions. Fortunately, for purposes of this costs decision, I do not need to resolve potential differences between the role of the Court and the assessment officer.

Nor do I need to engage in an analysis of Grimes in the larger context of the rise and fall (and rise) of

Schedule C. [ 27 ] With that background, I note that the Mother seeks costs of $10,696.63 for steps she claims to have taken in an effort to seek partition and sale and in an effort to settle the terms of the Implementation Order. [ 28 ] She arrives at this amount with recourse to Column 3 of

Schedule C and a multiplier of two applied to the fee portion. She argues that Column 3 is appropriate because there is approximately $150,000 of equity in the matrimonial home. [ 29 ] She argues further that the Father has failed to make proper disclosure of his various corporate interests.

She argues that he continues to do so and that this behaviour should not enure to the Father’s benefit. [ 30 ] She asserts that there are “unresolved support issues” and that, without specifying what these issues are, they should place a costs award within Column 3. [ 31 ] She attaches a draft Bill of Costs to her submissions. [ 32 ] In the alternative, she seeks costs similarly calculated under Column 2. In the further alternative she seeks

Schedule C costs with no multiplier. [ 33 ] She notes that she was substantially successful in securing the terms she sought in the Implementation Order. [ 34 ] She argues that a multiplier should be applied. Enhanced costs are justified, she argues, because delays on the Father’s

part in settling the terms of the Implementation Order placed the matrimonial home at risk of foreclosure. [ 35 ] She claims that the Father’s submissions on costs made “inappropriate use of privileged settlement communications and irrelevant criticism of the Mother and her counsel”. [ 36 ] She argues that the Father’s lack of good faith in discussions to settle the terms of the Implementation Order amounts to litigation misconduct and justifies the use of a multiplier. [ 37 ] Turning to the Mother’s draft Bill of Costs, she identifies the steps taken to resolve the partition and sale and costs issues. She does so with reference to various line items in

Schedule C. [ 38 ] She depicts these

Schedule C amounts with reference to Columns 2 and 3, to which she then attaches a multiplier. She arrives at fees of $7,080 using a multiplier of 2 in reference to Column 2 and $9,700 using a multiplier of 2 in reference to Column 3. Decision on Costs [ 39 ] The Mother’s submissions raise the following, arguably unresolved, issues: (

a) The proper

interpretation of the decisions of the Court of Appeal in McAllister and Barkwell , as those

interpretations may have been clarified in Grimes ; (

b) The discretion of a review officer in contrast to that of this Court in assessing costs; (

c) The Father’s alleged failure to disclose and alleged litigation misconduct and its implications for the selection of a multiplier; and

(

d) The extent to which unresolved support issues inform on the selection of an appropriate Column. [ 40 ] The parties are far apart in their assessment of appropriate costs ($675 v. $10,696.63). [ 41 ] The Mother considers these issues important or she would not have raised them in her submissions. However, they are not capable of responsible resolution on the basis of the evidence before me. One possible resolution would be for me to direct the Mother to expand upon these issues and provide more in-depth analysis.

The Father, who has engaged new counsel, would be given an opportunity to reply. [ 42 ] As I decline to conduct litigation through correspondence, I could direct that the matter of costs go to a Special Application. That, however, serves nobody’s interest. I agree with the Mother’s line items in her draft Bill of Costs.

There is, however, inadequate evidence before me to support the assertion that a column other than Column 1 should apply. [ 43 ] Furthermore, there is inadequate evidence that the Father’s conduct justifies an award of enhanced costs. [ 44 ] Accordingly, the Mother’s claim for costs in connection with fees is computed as follows: 3 applications encompassed by line item 7(1) $675.00 x 3 = $2,025.00 1 application encompassed by line item 9(1) $340.00 $2,365.00 [ 45 ] The Mother shall have her disbursements and other charges as reflected in her draft Bill of Costs. [ 46 ] If the parties cannot agree on the terms of an Order reflecting my directions in this decision, they may approach me for clarification and assistance.

Dated at the City of Calgary, Alberta this 14 th day of August, 2023. C.M. Jones J.C.K.B.A. Appearances: Daniel J. Wilson Mincher Koeman LLP for the Plaintiff/Mother Leigh Sherry Foster LLP for the Defendant/Father