Hearn v Kirk Montoute Dawson LLP, 2023 ABKB 449

Court of King’s Bench of Alberta Citation: Hearn v Kirk Montoute Dawson LLP, 2023 ABKB 449 Date: 20230727 Docket: 2101 11878 Registry: Calgary Between: Wendy Suzanne Hearn (AKA Sackett) Appellant - and - Kirk Montoute LLP Respondent _______________________________________________________ Reasons for Costs Decision of the Honourable Justice M.H. Hollins _______________________________________________________ [ 1 ] Ms. Wendy Hearn appealed the decision of a Review Officer to this Court. That appeal was dismissed and the decision of the Review Officer affirmed. As a result, Ms.

Hearn owes her former law firm, the Respondent Kirk Montoute Dawson LLP, the amount of $157,365.67 for unpaid legal fees. [ 2 ] The parties could not agree on the costs payable from to the Respondent in respect of the appeal so I invited written submissions thereon. The Respondent submitted its Brief but the Appellant submitted nothing, even after additional time was provided for her to address the Respondent’s submissions on costs.

[ 3 ] The Respondent’s costs, following

Schedule “C” to the Alberta Rules of Court (Column 2) would be $4,077.10 plus the costs of this post-decision application. However, the Respondent seeks a lump sum of $10,000 in costs under R.10.31(1)(b)(i). Mr.

Kirk, who argued the appeal, estimated that approximately 50 lawyer hours were expended, at a cost of approximately $26,250 for fees alone. [ 4 ] The Respondent relies on the Court of Appeal’s comments in McAllister v Calgary (City) , 2021 ABCA 25 at para.51, suggesting that a reasonable objective of a costs award – always subject to the judge’s discretion - would be to indemnify a successful party for 40-50% of their legal costs. [ 5 ] The Respondent pointed to no conduct of the Appellant that unnecessarily delayed or lengthened the proceedings, other than two pre-appeal applications for which costs were expressed not granted.

However, the appeal was entirely without merit and the Appellant has been owed these amounts for their representation of the Respondent for years now. Further, the Appellant provided no response to this claim for costs; no claims of impecuniosity nor any reason that a partial indemnity should not apply. [ 6 ] I will also say that, even though the law firm represented itself and so did not pay these amounts to a third-party lawyer, Messrs. Kirk and Dawson could obviously have been using the time spent on this appeal to work on paying files for other clients.

There is a direct and quantifiable cost to the Respondent of having successfully argued this appeal. [ 7 ] Given the disparity between our current

Schedule “C” and what legal proceedings actually cost, multiples of costs awards on the respective columns have become more the rule than the exception. In this case, I would have awarded double Column 2 costs as it should be obvious that no special chambers application requiring a Brief of Law could be conducted for $4,000. Doubling the

Schedule “C” costs and awarding single Column 2 costs of this application would total $9,839.20 before GST, almost exactly the amount claimed. [ 8 ] For all these reasons, I award costs to the Respondent of this appeal in the lump sum of $10,000, inclusive of this application for costs. Heard on th e 27 th day of January, 2023. Dated at the City of Calgary, Alberta this 27 th day of July, 2023. M.H. Hollins J.C.Q.B.A. Appearances: No one appearing for the Appellant Gary Kirk for Kirk Montoute Dawson LLP, the Respondent