Naidu v Murthi, 2023 ABKB 252

Court of King’s Bench of Alberta Citation: Naidu v Murthi, 2023 ABKB 252 Date: 20230426 Docket: FL03 66151 Registry: Edmonton Between: Vinus Naidu Applicant - and - Navin Sami Murthi Respondent _______________________________________________________ Memorandum of Decision of the Honourable Justice Susan L. Bercov _______________________________________________________ I. Introduction [ 1 ] Vinus Naidu applied for and obtained an ex-parte Emergency Protection Order (EPO) on October 24, 2022. Mr. Murthi filed an Affidavit disputing Ms. Naidu’s allegations.

The matter came before me for an EPO hearing on March 17, 2023. Ms. Naidu appeared and indicated she did not wish to continue the EPO. The EPO was terminated. Mr. Murthi sought costs. [ 2 ] I provided both parties leave to make written submissions on costs. Mr. Murthi’s counsel provided his written submissions. Ms. Naidu did not respond.

[ 3 ] Mr. Murthi seeks solicitor client costs of $2,000.00 arguing that it is clear in this case that Ms. Naidu sought an EPO for collateral purposes. II. Facts [ 4 ] The essential facts are not in dispute. They are: 1. The parties were in a common-law relationship for several years. They have one child together. 2. On August 12, 2022 the parties appeared in regular chambers. Justice Sulyma granted an Order for exclusive possession of the family home to Mr. Murthi. Notwithstanding the Order, Ms. Naidu refused to leave. 3. As there was no enforcement clause in Justice Sulyma’s Order, Mr.

Murthi sought an Urgent Chambers Hearing to find Ms. Naidu in contempt and obtain a police enforcement clause. Justice Yungwirth granted the request for an Urgent Chambers Hearing and directed the hearing for October 31, 2022. 4. Ms. Naidu was served with the application on October 21, 2022. 5. Ms. Naidu did not file any materials in response to Mr. Murthi’s application. 6. On October 24, 2022 Ms. Naidu applied for the EPO. 7. On October 31, 2022 Justice Fraser heard Mr. Murthi’s application for contempt. Justice Fraser found Ms.

Naidu in contempt, directed her to vacate the family home, provided a police enforcement clause, and granted costs against her in the sum of $1,000.00. His Order also states that the Order shall apply notwithstanding any EPO. III. Analysis [ 5 ] Notwithstanding the presumption in r 10.29 of the Rules of Court that a successful party is entitled to a cost award against the unsuccessful party, cost awards are rarely appropriate in EPO proceedings: Jama v Jama , 2016 ABQB 379 . [ 6 ] There are sound policy reasons for refusing to award costs of EPO proceedings.

The purpose of orders granted under the Protection Against Family Violence Act, RSA 2000, c P-27 is to provide for an immediate order to prevent family violence and protect vulnerable victims: Lenz v Sculptoreamu, 2016 ABCA 111 . Awarding costs against unsuccessful applicants may create an impediment to victims applying for these orders for fear of adverse cost awards: Lenz , para 45 .

Given the prevalence and seriousness of domestic violence, I agree with the Court of Appeal in Lenz that the objectives of the Act outweigh most considerations relating to costs, including when the Applicant is ultimately successful. [ 7 ] In deciding whether to award costs, I must also consider that Protections Orders are an extraordinary remedy significantly restraining the liberty of respondents. While designed to protect claimants from family violence, these orders are sometimes used for collateral purposes.

The use of Emergency Protection Orders for collateral purposes should not be sanctioned by the Court: Siwiec v Hlewka , 2005 ABQB 684 . [ 8 ] I conclude that as a general rule cost awards are not appropriate in EPO proceedings. However, where the evidence is clear that the EPO was sought for collateral purposes, an award of costs is appropriate. [ 9 ] In this case the evidence is clear that Ms. Naidu applied for the EPO for a collateral purpose.

The only reasonable inference from the timing of the application, the lack of detail in her evidence in support of the application, and her decision to discontinue the EPO is that Ms. Naidu applied for the EPO to thwart Justice Sulyma’s Order that Ms. Naidu did not want to comply with. [ 10 ] Having determined that a cost award is appropriate, the next issue is the amount of costs that I should award. Mr. Murthi seeks $2,000.00. His counsel indicates this is “representative of what our client incurred in legal fees”.

Counsel did not include an invoice with his submissions or any breakdown of the costs or the time that was spent. In the absence of this information, I am not persuaded that $2,000.00 is a reasonable sum. To review the transcript, prepare a response Affidavit and attend the Webex hearing, I conclude that a reasonable amount is $1,000.00. [ 11 ] I grant a cost award in favour of Mr. Murthi for $1,000.00, payable by Ms. Naidu forthwith. Heard on the 17 th day of March, 2023. Dated at the City of Edmonton, Alberta this 26 day of April, 2023.

Susan L. Bercov J.C.K.B.A. Appearances: Vinus Naidu Self Represented-Litigant Ahmed (Ed) Tarrabain Jomha Skrobot LLP for the Respondent