Terrigno v Fox, 2023 ABKB 190

Court of King’s Bench of Alberta Citation: Terrigno v Fox, 2023 ABKB 190 Date: 20230426 Docket: 1701 14128 Registry: Calgary Between: Mike Terrigno Applicant - and - Brian Fox and Uta Fox Respondents _______________________________________________________ Reasons for Decision on Costs of the Honourable Justice C.M. Jones _______________________________________________________ I. Introduction [ 1 ] The following sets out my costs award in respect of my decision in Terrigno v Fox , 2023 ABKB 89 (the “Appeal Decision”). [ 2 ] The background, briefly, is that Mr. Terrigno sued Mr. Fox for defamation and brought an application for

summary judgment in that action. That application remains to be heard. [ 3 ] Mr. Fox brought an application to before an Applications Judge to prevent Mr. Terrigno from using an audio recording he had made, unbeknownst to Mr. Fox, as evidence in the

summary judgment application. Mr. Fox also applied to have Mr. Terrigno found in breach of the implied undertaking rule codified in rule 5.33 of the Alberta Rules of Court (“ Rules” ). [ 4 ] The Applications Judge found that Mr. Terrigno had breached both his obligation to provide a compliant Affidavit of Records in accordance with the provisions of

Part 5 of the Rules and the implied undertaking rule. He imposed consequences on Mr. Terrigno for those breaches. All parties acknowledge that the Applications Judge erred in one important factual aspect of the case before him. [ 5 ] Notwithstanding that error, I found in the Appeal Decision that the Applications Judge was correct in his conclusions and I affirmed the sanctions he imposed upon Mr. Terrigno. [ 6 ] The parties have been unable to agree on costs and provided written submissions as I directed in the Appeal Decision. II. Mr. Terrigno’s Submissions

[ 7 ] Mr. Terrigno argues that an appropriate award would be party-party costs on Column 2 of

Schedule C to the Rules . He has provided a draft Bill of Costs in which he refers to fees of $1,685.00 for a half day contested application requiring a written brief. [ 8 ] Mr. Terrigno asserts that Mr. Fox failed to provide his proposed Bill of Costs in timely fashion and that he was required to file his written costs submissions without having seen it. He therefore seeks a reduction of $1,000.00 in the fees payable, referring to item 7(1) of the Rules . This would leave fees payable to the Respondents of $685.00. [ 9 ] Mr.

Terrigno appears to seek an award in respect of disbursements in the amount of $163.80, though in his draft Bill of Costs, he added this amount to the fees payable to the Respondents, rather than subtracting it. [ 10 ] Mr. Terrigno makes several arguments in support of his position. He claims that the Appeal Decision will be helpful to future litigants as it clarified the law on the issues before me. He asserts a measure of success in that I allowed him to file some additional evidence that was not before the Applications Judge and I denied Mr. Fox’s request to have the action summarily dismissed for Mr.

Terrigno’s failure to produce a proper Affidavit of Records. [ 11 ] Mr. Terrigno also disputes Mr. Fox’s argument that my costs award should address Mr. Terrigno’s alleged litigation misconduct. He argues that any such misconduct should be addressed by the trial judge. [ 12 ] Finally, Mr. Terrigno argues that he was compelled to appeal the Application Judge’s determination that he had filed false Affidavits. He notes that I corrected the Applications Judge’s misstatement and argues that this should militate against any costs award the Court otherwise would be inclined to make against him. III. Mr.

Fox’s Submissions [ 13 ] Mr. Fox seeks what he refers to as enhanced costs in the lump sum of amount of $10,000.00, inclusive of GST and disbursements. He arrives at this amount via two paths. First, he computes elevated

Schedule C costs of $9,450.00 based on Column 5 as follows: Item 8(1) contested application with brief – appeal before Justice Jones $2,700.00 Item 8(1) contested application with brief- application before the Applications Judge $2,700.00 Item 5(2) ½ day cross-examination of Brian Fox conducted November 4, 2021 $2,025.00 Item 5(2) ½ day cross-examination of Brian Fox conducted on November 4, 2021 $2,025.00 [ 14 ] With respect to the two half-days of cross-examination, Mr. Fox asserts that the Applications Judge gave him no opportunity to request these costs.

He argues that, had the Applications Judge allowed him to make costs submissions, he would have sought enhanced costs for the cross-examinations and the application. [ 15 ] While Mr. Fox did not appeal the Applications Judge’s award, he argues that I have jurisdiction to impose a higher costs award to ensure that it is properly tailored to Mr. Terrigno’s conduct. He asserts that the Applications Judge’s award of costs of $5,000.00 was wholly insufficient, given that costs on Column 2 of

Schedule C would have been nearly $4,000.00 and that he argues Column 5 is more appropriate in light of Mr. Terrigno’s conduct. [ 16 ] Alternatively, Mr. Fox cites McAllister v Calgary (City) , 2021 ABCA 25 for the proposition that 40-50% indemnification is an appropriate starting point having regard to the factors in Rule 10.33. He claims to have incurred approximately $20,000 in legal fees/disbursements in connection with the application before the Applications Judge and the appeal before me. [ 17 ] Mr.

Fox notes that the test for enhanced costs is not the same as that for full indemnity costs and cites Decore v Decore , 2016 ABQB 572 for examples of when enhanced costs are appropriate: 1. litigation misconduct amounting to blameworthiness; 2. where justice can only be done by complete indemnification for costs; 3. delaying, hindering or confusing litigation where there was no serious issue of fact or law; 4. displays of contempt for an aggrieved party in forcing that party to exhaust legal proceedings to obtain that which was obviously his; 5. attempts to deceive the court and delay justice; 6. requiring proof of facts that should have been admitted; and 7. failing to produce material documents in a timely fashion: Xpress Lube & Car Wash Ltd v Gill , 2019 ABQB 756 . [ 18 ] Mr.

Fox points out that both his enhanced costs computed with reference to column 5 and the percentage of full indemnity costs as contemplated in McAllister amount to approximately $10,000. [ 19 ] Mr. Fox relies on several factors to justify his request for enhanced costs. First, he asserts that enhanced costs are justified by Mr. Terrigno’s improper conduct that necessitated the application before the Applications Judge and the appeal before me. Mr. Fox

argues that, had Mr. Terrigno simply followed the procedural rules, this Action likely would have resolved much earlier and with significantly less expense. [ 20 ] In addition, Mr. Fox argues that the appeal before me was more complex than the hearing before the Applications Judge. New issues and new evidence, in the form of three additional affidavits, were before me. The issue of litigation privilege was fully argued and considered in the appeal, whereas the Applications Judge made no findings on this issue. [ 21 ] Similar to Mr. Terrigno, Mr.

Fox asserts that my resolution of the issues of admissibility of the audio recording and the breach of the implied undertaking rule are important and likely will materially impact Mr. Terrigno’s criminal and administrative complaints against Mr. Fox. Mr. Fox also believes that the Appeal Decision will be important for dissuading litigants from breaching the Rules for a collateral and improper purpose. [ 22 ] Finally, Mr. Fox argues that enhanced costs are appropriate in view of Mr. Terrigno’s misconduct. He argues that Mr.

Terrigno sends his counsel abusive, unprofessional and disrespectful communications and his submissions contain a recent example of such a communication. Mr. Fox argues that Mr. Terrigno has a documented history of using this type of communication with opposing counsel and other parties. He cites three published decisions in which the Court has commented on Mr. Terrigno’s conduct. [ 23 ] Citing Rocky View (County) v Wright , 2021 ABQB 930 , Mr. Fox argues that misuse of the legal process to punish, intimidate, or bully another party is a form of abuse of process that may provide a basis for enhanced costs. Mr.

Fox contends that this Court needs to send Mr. Terrigno a strong message in the form of its costs decision. [ 24 ] Mr. Fox also argues that his application before the Applications Judge was necessitated by Mr. Terrigno’s proven misconduct, which would have seriously prejudiced his ability to defend Mr. Terrigno’s action against him. [ 25 ] Mr. Fox notes that I declined to strike Mr. Terrigno’s statement of claim and stated in the Appeal Decision at paragraph 129 that: An award of costs may be tailored to address adequately the issues that have arisen in connection with Mr.

Terrigno’s conduct in this litigation. [ 26 ] In addition to an award of costs, Mr. Fox also seeks an order consistent with what the Applications Judge ordered, being a stay of Mr. Terrigno’s action until any costs awarded in relation to the Appeal Decision are paid. IV. Decision [ 27 ] I award Mr. Fox costs in respect of the appeal before me, computed in accordance with Column 2 of

Schedule C to the Rules . [ 28 ] I reject his request for additional costs associated with cross-examination and arising from what he describes as a failure of the Applications Judge to account for Mr. Terrigno’s litigation misconduct. Mr. Fox did not appeal the Applications Judge’s costs award of $5,000 and I am not prepared to revisit it. [ 29 ] I see no justification for Mr. Fox’s request that I address the totality of alleged litigation misconduct by Mr. Terrigno to date in this action. I view my responsibility as addressing costs arising in connection with the Appeal Decision.

The Justice who hears the trial in this matter is at liberty to address a broader spectrum of litigation behaviour and to award costs accordingly. No doubt that Justice will be apprised of both the disparaging comments Mr. Terrigno has made in his email communications and the disparaging comments Mr. Fox’s counsel made to Mr. Terrigno in Questioning which ultimately resulted in its premature termination. [ 30 ] I also see no justification for the reduction requested by Mr. Terrigno. [ 31 ] In the result, I award Mr. Fox costs pursuant to line item 8(1) of Column 2 of

Schedule C in the amount of $1,685.00. Mr. Fox shall also have the taxable and non-taxable disbursements set forth in his draft Bill of Costs. [ 32 ] I decline to order a stay of Mr. Terrigno’s action until this costs award is paid. Dated at the City of Calgary, Alberta this 26 th day of April, 2023 C.M. Jones J.C.K.B.A. Appearances: Mike Terrigno, self-represented

for the Applicant Brad Findlater for the Respondents