Alston v Haywood Securities Inc, 2022 ABKB 797

Court of King’s Bench of Alberta Citation: Alston v Haywood Securities Inc, 2022 ABKB 797 Date: Docket: 1001-09392 Registry: Calgary Between: Ellen Alston and E. L. Alston & Associates Ltd. Plaintiffs - and - Haywood Securities Inc., Capital Markets Haywood Securities Inc., Greg Flowers, Tony Fulgenzi and John Doe Defendants _______________________________________________________ Costs Endorsement of the Honourable Mr.

Justice JT Eamon _______________________________________________________ Introduction [ 1 ] In early 2020 I dismissed an appeal from the decision of Master Prowse QC (now Application Judge Prowse KC) to dismiss the Plaintiffs’ action due to delay ( Alston v Haywood Securities Inc , 2019 ABQB 634 (MC) , app dism 2020 ABQB 107 (“appeal reasons”), supplemental reasons settling the formal order, 2020 ABQB 214 ). [ 2 ] The Plaintiffs’ appeal from my decision was dismissed by the Alberta Court of Appeal ( Alston v Haywood Securities Inc , 2022 ABCA 84 ). [ 3 ] This endorsement addresses the Defendants’ requests for costs of the appeal.

Defendants’ position [ 4 ] The Defendants, by letter application of June 7, 2022, seek costs of the appeal from the decision of Application Judge Prowse KC to dismiss the action. The Defendants other than Flowers were jointly represented and submitted a joint bill of costs. Flowers (who is represented by separate counsel) submitted a separate bill of costs. The Defendants propose that costs be assessed on the basis of

Schedule “C”, column 3 of the Alberta Rules of Court [1] . They seek to double the costs because the appeal was a step following service of a formal offer to settle the action. [ 5 ] Application Judge Prowse KC dealt with the other costs of the action. He awarded costs on

Schedule “C”, column 3, doubled

from service of the settlement offer, and declined to award enhanced costs (desk endorsement filed December 18, 2020). [6] In a supplemental desk endorsement filed January 27, 2021, he declined to increase the costs to reflect the March 2020amendments to

Schedule “C”. He stated: If my ruling on the dismissal for delay and/or the initially anticipated date for ruling on costs had been after May 1, 2020 then I mayhave applied the amendments to

Schedule C which came into force on May 1, 2020. However, as indicated, both my ruling on the substance of the dismissal application and the anticipated date for dealing with the costswere prior to May 1, 2020. In that circumstance I exercise my discretion to apply

Schedule C as it was prior to May 1, 2020. Plaintiffs’ position [7] The Plaintiffs responded on June 10, 2022 that the Court acted on fraudulent submissions from the Defendants’ lawyers, andacted unethically and contrary to justice including ignoring the Plaintiffs’ submissions. The Plaintiffs advised that the matter is beingreported to the Canadian Judicial Council and the RCMP. [8] In a subsequent response provided June 11, 2022 the Plaintiffs advised that complaints had been filed with the CanadianJudicial Council and RCMP for judicial impropriety and malfeasance.

The Plaintiffs provided, with that communication, a copy of anaffidavit sworn by Ms Alston and filed on the appeal file in the Alberta Court of Appeal on November 25, 2021, describing what MsAlston asserts are numerous errors in my appeal reasons. [9] In its reasons dismissing the appeal from my decision, the Court of Appeal observed with respect to this affidavit: [8] The appellant filed an application to admit new evidence on appeal on December 7, 2020. The proposed new evidencecontains emails from 2017 and 2019, and an asset list from the respondent brokerage dated June 30, 2008.

The appellant filed a further96-page “Supplementary Affidavit” on November 25, 2021. It consists primarily of argument directed at previous court decisions andthe conduct of the respondents’ counsel, with reference to the appeal record, factum, and extracts of key evidence. In addition, the“Supplementary Affidavit” includes nine exhibits containing transcript excerpts from proceedings that took place in 2018 and 2019, andemails from 2008, 2015, 2016 and 2018. [9] None of this proposed new evidence meets the criteria set out in Palmer v The Queen, [1980] 1 SCR 759, (SCC).

The evidence was available at the time of the hearing before the chambers judge. Further, and in any event, the evidence is notrelevant to the issue of delay and cannot reasonably be expected to have affected the result in the court below.

The appellant’sapplication to admit new evidence is therefore denied. (Alston v Haywood Securities Inc, 2022 ABCA 84) [10] By letter dated September 20, 2022 Ms Alston submitted defence counsel were lying in their submissions to the Alberta Courtof Appeal and to me, and that fraud undoes everything; that my appeal decision ignored and negated her submissions and writtendocumentation; that the Alberta Court of Appeal denied costs to the Defendants; that my decision was sent to the Canadian JudicialCouncil for action; and, that Ms Alston is working closely with the National Self Represented Litigants Project, who have advised herthat the injustice in her case is severe. [11] Ms Alston sent additional correspondence in late October/early November, providing additional information.

I describe thesecommunications in the next

section of this endorsement. Previous procedural directions [12] I made a number of procedural directions toward determining the costs application by desk endorsement filed July 28, 2022. [13] The directions included an opportunity for the Plaintiffs to clarify whether they were seeking that I recuse myself fromdeciding costs. The purpose of the Plaintiffs informing me that they have filed complaints with the Canadian Judicial Council or theRCMP was not apparent.

The Plaintiffs had not requested that I recuse myself or asked me to take any steps in light of their complaints. [14] In the desk endorsement, I noted the law concerning recusal was recently and extensively summarized by Associate ChiefJustice Rooke in Rana v Rana, 2022 ABQB 139 at paras 41 - 50. Specifically with respect to complaints against the judge, Rooke ACJobserved: [48] As for Mr. S. Rana’s CJC complaint, the law is clear in Canada that recusal is not an automatic requirement when a litigantcomplains about the conduct of a judge, for example to the Canadian Judicial Council.

In Taha v Williams, 2019 PECA 11 at paras 22-23, Chief Justice Jenkins concluded: “... A litigant coming before the court cannot create a reasonable apprehension of bias merely byfiling a complaint with the Canadian Judicial Council. ...”. [49] Similarly, in Ayers v Miller, 2019 SKCA 2 at paras 34-35, Justice Jackson identified the critical question for a judgeremaining seized of a matter: A complaint to the Canadian Judicial Council cannot result in an automatic and successful recusal application.

It is for the judge todetermine, based on a review of all of the relevant evidence, and applying the applicable jurisprudence, whether he or she can continue tojudge impartially notwithstanding the complaint to the Canadian Judicial Council.

[50] This is an aspect of a broader principle identified by Côté JA in Boardwalk Reit LLP v Edmonton (City) , 2008 ABCA 176 at para 72 : a litigant may not “... engineer perceived conflicts ...” by taking steps, making allegations, or advancing complaints. [ 15 ] Other recent examples of this principle include: Green v Green , 2022 NSSC 30 at paras 47-48 ; Rana v Rana , 2022 ABQB 141 at para 7 ; Feeney v TD General Insurance Company , 2021 ABQB 947 at para 23 ; Simon v Feeney , 2020 ABQB 641 at paras 12- 13 , aff’d 2022 ABCA 253 . [ 16 ] I directed that if Ms Alston wished to clarify whether she is applying to me to recuse myself or particularize her concerns so that I may consider them in the context of the foregoing authorities, she could do so by filing with the Court, and serving on the Defendants, a written submission no later than September 2, 2022. [ 17 ] I further directed that I would consider the Defendants’ letter of June 7, 2022 with attachments, and Ms Alston’s emails of June 10 and 11, 2022 and their attachments in considering the costs issues. [ 18 ] I observed in the desk endorsement that Ms Alston’s responses raised the issue whether her materials are a collateral attack on my appeal decision as affirmed by the Alberta Court of Appeal and whether I ought to consider such matters or am functus because my formal order was entered more than two years ago.

I observed there are issues whether the double costs rule should be applied, and whether (and how) I should deal with the numerous allegations of litigation misconduct that the Plaintiffs allege against the Defendants’ lawyers in the affidavit attached to their email of June 11, 2022. [ 19 ] I directed that if Ms Alston wished to make any further written submissions on costs, she may file with the Court and serve on Defendants’ counsel, a supplemental written submission no later than September 2, 2022. [ 20 ] I further directed that the Defendants may file with the Court and serve on the Plaintiffs, a reply brief within the earlier of (

a) two weeks of service of any additional costs submissions by the Plaintiffs and (

b) September 16, 2022. [ 21 ] I directed that if either side wishes to request an oral hearing, they must make the request in a filing directed in the desk endorsement and provide reasons for the request. [ 22 ] Neither side sent additional submissions.

By email on September 13, 2022 from my judicial assistant to the parties, the Court noted it did not receive additional submissions, requested the Defendants provide brief submissions with respect to their costs claims, including certain disbursement claims, and provided an opportunity for any party to provide a short reply to such submissions. [ 23 ] By letters dated September 15, 2022, defence counsel withdrew their disbursement claims and reiterated their request for costs. [ 24 ] By letter dated September 20, 2022 Ms Alston made several submissions about the appeal decision and the conduct of the Defendants and their counsel (see para 10 above). [ 25 ] On October 30, 2022 Ms Alston sent a letter stating the Defendants obtained illegal garnishment summonses.

On November 1, 2022, Ms Alston forwarded to my judicial assistant emails and records with respect to Application Judge Prowse’s costs orders including an appeal thereof (filed in January 2021) and several allegations of misconduct against counsel for the Defendants. [ 26 ] Neither side requested an oral hearing of the costs application.

Allegations of judicial misconduct [ 27 ] Although Ms Alston has not requested that I recuse myself, I nevertheless considered whether I should recuse myself in light of Ms Alston’s communications. [ 28 ] Ms Alston’s affidavit asserts numerous factual or legal errors in my decision dismissing her appeal. As to the asserted errors, the Court of Appeal observed in its reasons dismissing the appeal from my decision: [12] The chambers judge very carefully reviewed the history of the proceeding and found that the appellant was responsible for all delay after 2016.

The chambers judge rejected the appellant’s allegations that the respondents acted dishonestly or purposefully obstructed the action, finding instead that the appellant not only delayed the action, but also obstructed it. That finding is entitled to deference. [13] The chambers judge found that the respondents suffered substantial litigation prejudice because of the appellant’s inexcusable and inordinate delay.

The chambers judge recognized that this was not mainly a documents-based case, and that the parties’ recollections of discussions would provide context for the emails alleged to contain the appellant’s instructions to her broker. Those findings are also entitled to deference. [14] The chambers judge stated the correct legal test, and his factual findings are ones that are available on this record. The appellant’s fundamental argument is that the chambers judge erred in rejecting her

interpretation of the evidence and in failing to draw the conclusions she does. However, he made no palpable and overriding error in doing so.

There is no basis for this Court to interfere with the chambers judge’s conclusion that the action should be dismissed under Rule 4.31. [15] Whether an action has been “significantly advanced” under Rule 4.33 is a question of mixed fact and law involving “an assessment and measurement of the effect of what happened in the action during the period of alleged delay, measured in light of the facts and the objectives of the Rules of Court”: Ro-Dar Contracting Ltd v Verbeek Sand & Gravel Inc , 2016 ABCA 123 at para 11 .

Questions of mixed fact and law are also reviewed for palpable and overriding error: Housen v Nikolaisen , 2002 SCC 33 at para 36 .

[16] The chambers judge’s assessment that the steps taken after March 8, 2016, did not narrow the issues, complete or advancediscovery, clarify the parties’ positions, or otherwise stop the clock reveals no palpable and overriding error.

There is no basis tointerfere with his conclusion that the action must also be dismissed against the respondents, Haywood Securities Inc., Capital MarketsHaywood Securities Inc., and Tony Fulgenzi, pursuant to rule 4.33. (Alston v Haywood Securities Inc, 2022 ABCA 84) [29] In Yukon Francophone School Board, Education Area #23 v Yukon (Attorney General), 2015 SCC 25 , [2015] 2SCR 282 the Supreme Court of Canada summarized the law of recusal: [20] The test for a reasonable apprehension of bias is undisputed and was first articulated by this Court as follows: . . . what would an informed person, viewing the matter realistically and practically — and having thought the matter through —conclude.

Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would notdecide fairly. [Citation omitted.] (Committee for Justice and Liberty v. National Energy Board, (SCC), [1978] 1 S.C.R. 369, at p. 394, per de Grandpré J.(dissenting)). [21] This test — what would a reasonable, informed person think — has consistently been endorsed and clarified by thisCourt: ... [citations omitted by Eamon J]. [22] The objective of the test is to ensure not only the reality, but the appearance of a fair adjudicative process.

The issueof bias is thus inextricably linked to the need for impartiality. In Valente, Le Dain J. connected the dots from an absence of bias toimpartiality, concluding “[i]mpartiality refers to a state of mind or attitude of the tribunal in relation to the issues and the parties in aparticular case” and “connotes absence of bias, actual or perceived”: p. 685. Impartiality and the absence of the bias have developed asboth legal and ethical requirements.

Judges are required — and expected — to approach every case with impartiality and an open mind:see S. (R.D.), at para. 49, per L’Heureux-Dubé and McLachlin JJ. [23] In Wewaykum, this Court confirmed the requirement of impartial adjudication for maintaining public confidence inthe ability of a judge to be genuinely open: . . . public confidence in our legal system is rooted in the fundamental belief that those who adjudicate in law must always do so withoutbias or prejudice and must be perceived to do so.

The essence of impartiality lies in the requirement of the judge to approach the case to be adjudicated with an open mind. [Emphasisadded; paras. 57-58.] [24] Or, as Jeremy Webber observed, “impartiality is a cardinal virtue in a judge. For adjudication to be accepted,litigants must have confidence that the judge is not influenced by irrelevant considerations to favour one side or the other”: “The Limitsto Judges’ Free Speech: A Comment on the Report of the Committee of Investigation into the Conduct of the Hon.

Mr Justice Berger”(1984), 29 McGill L.J. 369, at p. 389. [25] Because there is a strong presumption of judicial impartiality that is not easily displaced (Cojocaru v. BritishColumbia Women’s Hospital and Health Centre, 2013 SCC 30 , [2013] 2 S.C.R. 357, at para. 22), the test for a reasonableapprehension of bias requires a “real likelihood or probability of bias” and that a judge’s individual comments during a trial not be seenin isolation: see Arsenault-Cameron v.

Prince Edward Island, (SCC), [1999] 3 S.C.R. 851, at para. 2; S. (R.D.), atpara. 134, per Cory J. [26] The inquiry into whether a decision-maker’s conduct creates a reasonable apprehension of bias, as a result, isinherently contextual and fact-specific, and there is a correspondingly high burden of proving the claim on the party alleging bias: seeWewaykum, at para. 77; S. (R.D.), at para. 114, per Cory J.

As Cory J. observed in S. (R.D.): . . . allegations of perceived judicial bias will generally not succeed unless the impugned conduct, taken in context, truly demonstratesa sound basis for perceiving that a particular determination has been made on the basis of prejudice or generalizations. One overridingprinciple that arises from these cases is that the impugned comments or other conduct must not be looked at in isolation.

Rather it mustbe considered in the context of the circumstances, and in light of the whole proceeding. [Emphasis added; para. 141.] [30] Ms Alston’s affidavit and communications indicate the Plaintiffs’ disagreement over my

interpretation of the evidence, factfindings, and application of the relevant legal principles. An unfavourable result or conclusion by a judge in relation to a party is not initself a basis to conclude there has been bias or prejudice (Simon v Feeney, 2020 ABQB 641 at paras 19 - 20, app dism 2022 ABCA 253and authorities cited therein). A reasonable, informed person would not conclude that I would not or might not decide the remainingmatter of costs fairly or impartially.

Costs principles [31] A successful party to an application, a proceeding or an action is entitled to a costs award against the unsuccessful party,subject to a variety of considerations including the Court’s general discretion under Rule 10.31 (Alberta Rules of Court, Rule 10.29). Anaward of costs is the “prima facie entitlement of the successful party, but that entitlement may not always obtain” (McAllister v Calgary(City), 2021 ABCA 25 at para 21). [32] Rule 10.31 reflects the basic rule that the quantum of a cost award must be reasonable and proper.

[ 33 ] Rule 10.33(1) provides that after considering the matters described in Rule 10.33, the Court may order one party to pay to another party, as a costs award, one or a combination of the following: (

a) the reasonable and proper costs that a party incurred to file an application, to take proceedings or to carry on an action, or that a party incurred to participate in an application, proceeding or action, or (

b) any amount that the Court considers to be appropriate in the circumstances. Under Rule 10.33, the circumstances include the conduct of a party that was unnecessary or that unnecessarily lengthened or delayed the action or any stage or step of the action, and misconduct. [ 34 ] The Court of Appeal has recently affirmed the general approach to quantifying reasonable and proper costs at a level approximating 40-50% of actual costs ( McAllister v Calgary (City) , 2021 ABCA 25 ).

Schedule “C” may be appropriate in routine, high volume chambers applications ( ibid at para 59).

Schedule C can also be a useful default to which parties may defer, or which trial judges may adopt in a variety of circumstances. For example, in cases in which there is a significant imbalance in the power and means of the parties,

Schedule C, notwithstanding its limitations vis-à-vis indemnity, may be preferable ( ibid at para 60). Further, a

Schedule C determination might be used as a cross-check to ensure that a costs award otherwise arrived at is reasonable ( McAllister at para 61 ). Costs assessment [ 35 ] In quantifying reasonable and proper costs, the Defendants propose to utilize column 3 of

Schedule “C” prior to the March 2020 amendments ($1500 plus reasonable disbursements). They seek to double the costs to $3000 pursuant to Rule 4.29(1), because they served a formal offer to settle on November 20, 2014 and the dismissal of the action was more favourable to them than their offer. [ 36 ] The Plaintiffs asserted in the appeal hearing before me, that the Defendants and their counsel were guilty of litigation misconduct including lying and misleading the Court.

I found that such assertions were not proved (see my appeal reasons at paras 34, 62 – 89, 94, 113, 117). [ 37 ] The Plaintiffs’ materials on the costs application, particularly the supplemental affidavit, contain a mixture of Ms Alston’s opinions on my conclusions of fact or law, assertions of fact, and allegations of fraud. [ 38 ] My judgment in the present case is an entered, final judgment dismissing the action. The policy against attempts to relitigate such judgments is strong. Relitigating is permitted only in the most compelling circumstances ( Hill v Hill , 2016 ABCA 49 at paras 27 - 28 ).

The standards are high: [29] One special circumstance that can operate as an exception to res judicata is where a judgment is obtained through fraud. Another is the discovery of new evidence, not available at trial, that impeaches the result of the case. These are narrow exceptions with very high degrees of proof required to ensure that relitigation will be permitted only in rare circumstances .

As noted by LeBel J, relitigation is available only where necessary to enhance the credibility, effectiveness and integrity of the administration of justice: Toronto (City) v CUPE, Local 79 , 2003 SCC 63 at para 52 , [2003] 3 SCR 77 [CUPE]. ( Hill at para 29 , emphasis added). [ 39 ] Where a party alleges fraud, the new evidence must be practically conclusive ( Burcevski v Ambrozic , 2010 ABQB 570 at paras 45 , 49 - 50, app dism 2011 ABCA 178 , citing Wavel Ventures Corp v Constantini (1996), 1996 ABCA 415 at paras 39 - 41 ). [ 40 ] In the present case, the Court of Appeal concluded that the material in the supplemental affidavit could have been submitted at the King’s Bench hearing before me ( Alston at 2022 ABCA 84 at paras 8 - 9 ).

Further, the Court concluded: “Further, and in any event, the evidence is not relevant to the issue of delay and cannot reasonably be expected to have affected the result in the court below.” ( ibid at para 9). [ 41 ] The fraud allegations in the supplemental affidavit largely reflect Ms Alston’s evidence and submissions in the appeal hearing about defence misconduct, which I rejected. In my appeal reasons, I summarized: [67] In respect of the period commencing late November 2017, Ms Alston’s complaints against the defence are wide ranging but more particularized.

I have divided them into alleged misrepresentations to Judges and Masters in court proceedings, the handling of the records production application, and other process complaints. I conclude that the defence are not responsible for any delay during this period. Further, Ms Alston committed serious litigation misconduct and obstructed the progress of the action.

The following paragraphs explain my conclusions. [68] Ms Alston’s complaints of alleged misrepresentations at Court applications mainly arise from Ms Alston’s perception that the defence commit misrepresentation when they fail to state her position in the course of stating their position. It is apparent from her Response to Notice to Admit Facts and some of her affidavits that Ms Alston believes the defence is required to put their points and Ms Alston’s points to the Court in submissions, and not doing so, without more, amounts to a misrepresentation by omission. That is not the case in contested applications.

If Ms Alston disagreed with defence counsel’s representations in Court, she was free to say so. [69] In her affidavits, Ms Alston also infers or concludes that the defence acted with dishonest intentions. Her inferences and opinions about counsel’s motivations, state of actual knowledge, or intentions are not themselves admissible. Sometimes parties and lawyers innocently or even negligently mis-state a fact or abbreviate an explanation.

That is not evidence of dishonesty or purposefully obstructive behaviour. [70] None of the allegations of dishonesty or purposeful obstruction, even if substantiated (and I do not find on the present record cogent evidence that would prove on the balance of probabilities that they are proved), explain why Ms Alston did not move her action forward. ( Alston v Haywood Securities Inc , 2020 ABQB 107 ) [ 42 ] The supplemental affidavit does not present evidence satisfying the fresh evidence standard, nor is there a reasonable prospect

that the few additional details in the supplemental affidavit would be practically conclusive in demonstrating fraud. [ 43 ] In the above circumstances, deferring the issue of costs pending a possible application to set aside the judgment based on fraud is not appropriate. The costs should be assessed based on the outcome and findings expressed in my appeal reasons. [ 44 ] Ms Alston’s claims of unlawful garnishment summonses are not relevant to the costs issues.

The summonses seek to enforce the costs awards made by Application Judge Prowse KC and were issued well after the appeal hearing before me. [ 45 ] Ms Alston further submitted the Alberta Court of Appeal refused the Defendants/Respondents costs. This is not substantiated by the records provided in the costs materials and I reject it. [ 46 ] I do not agree with Ms Alston’s submission that she was treated unjustly as a self-represented litigant.

In addition to the considerations set out in my appeal reasons at para 114, in respect of the appeal hearing itself Ms Alston had the background of a significant history of representing herself, had filed extensive materials, and had assistance from individuals of her choosing present with her at the counsel table. [ 47 ] Consequently, the Defendants should receive costs of the appeal before me. [ 48 ]

Schedule “C”, column 3 is an appropriate starting point because the damages claim in the Plaintiffs’ statement of claim was in the range of $150,000 to $500,000. [ 49 ] Overall, the tariff amount is a very modest indemnification for legal fees for the appeal, given the importance of the outcome to the parties, the large amounts of material presented by the Plaintiffs, and the wide ranging allegations against the Defendants and their counsel. [ 50 ] The Defendants seek to double the costs on account of the settlement offer. [ 51 ] In order to have costs consequences under Rule 4.29, the offer must comply with the specific requirements of Rule 4.24(2) and be a genuine offer to compromise in the sense described in Allen (Next Friend of) v Mueller , 2006 ABCA 101 at paras 13 - 19 and H2S Solutions Ltd v Tourmaline Oil Corp , 2020 ABCA 201 at para 13 .

An offer of settlement that does not realistically reflect the relative merit of the parties’ positions at the time it is made is not a genuine offer ( Allen at para 16 ). [ 52 ] In the present case, the offer complies with the technical requirements of the rules.

Does the offer comply with the requirement of being a genuine offer of compromise? [ 53 ] The burden of proof in showing that an offer is not genuine or that there is “special reason” to depart from the presumptive rule of double costs is on the losing party ( Union Square Apartments Ltd v Academy Contractors Inc (Abalon Construction) , 2017 ABQB 151 at para 14 ; Yassa v Parker , 2018 ABQB 403 at para 14 ; Singh v Noce , 2018 ABQB 950 at para 35 ). [ 54 ] The offer was made November 20, 2014. It offered the principal amount of $20,000, prejudgment interest, and the Plaintiffs’ taxable costs.

It was a second offer, an increase over a previous offer that (according to the transmittal letter) followed discussions with the Ombudsman for Banking Services and Investments that found the earlier offer was fair. The offer was open for the minimum period under Rule 4.24(3) (in this case, two months). [ 55 ] The allegations in the action at the time of the offer (summarized in my appeal reasons at para 7 and mainly turning on alleged failure to comply with instructions) were narrow [2] . The allegations gave rise to clearly defined defences ( ibid at para 8).

Affidavits of records were exchanged in late 2011 ( ibid at para 28). The pre-trial examination of the broker who dealt directly with Ms Alston was scheduled for November 24, 2014 and proceeded on that day. Consequently, the Plaintiffs had an opportunity of a first round of discovery of the broker who dealt with the client and thereby, the opportunity to assess the strength of their position well before the offer expired. [ 56 ] The Plaintiffs have not made submissions on the offer or asserted it was not genuine or does not comply with the requirements for formal offers. The presumption has not been displaced.

I award double costs for the appeal. [ 57 ] There is nothing on the record suggesting Flowers was unreasonable in utilizing separate counsel. Given the allegations in the statement of claim, it would not be inappropriate that the broker was separately represented.

It is appropriate that each of the Haywood Defendants and the Defendant Flowers receive costs. [ 58 ] I am satisfied that the overall amount of costs ($6,000) does not exceed the fair and reasonable amount for the special application, given the number of issues, the numerous allegations to which the Defendants were obliged to respond, and the volume of the submissions and underlying records presented by the Plaintiffs. Disbursements [ 59 ] The Defendants withdrew their disbursements claims.

Conclusion [ 60 ] The Defendants are awarded costs against the Plaintiffs jointly and severally, as follows: Haywood Securities Inc, Capital Markets Haywood Securities Inc, and Tony Fulgenzi, $3,000; Greg Flowers, $3,000; payable forthwith (Rule 10.29(1)). The Defendants will submit a form of order, in Word format, for my consideration. Rule 9.4(2)(

c) is invoked.

Written request from Defendants June 7, 2022; email responses from Plaintiff, June 10 and11, 2022; additional letter submissions from the Defendants, September 15, 2022; additional letter submission from the Plaintiffs, September 20, 2022; additional materials from the Plaintiffs, October 30 and November 1, 2022.

Dated at the City of Calgary, Alberta this 29 th day of November, 2022. ___________________________ JT Eamon JCKAB Appearances: Ms E L Alston, self represented litigant for the Plaintiffs/Appellants Mr K Hannan, Lawson Lundell LLP for the Defendants/Respondents Haywood Securities Inc, Capital Markets Haywood Securities Inc, and Tony Fulgenzi Mr R B Brander for the Defendant/Respondent Greg Flower