Ford v Jivraj, 2023 ABKB 465

Court of King’s Bench of Alberta Citation: Ford v Jivraj, 2023 ABKB 465 Date: 20230810 Docket: 1901 16301 Registry: Calgary Between: Caylan Ford Plaintiff - and - Karim A. Jivraj Defendant _______________________________________________________ Decision on Costs of the Honourable Justice Robert A. Graesser _______________________________________________________ I. Introduction [1] This matter has been the subject of two written decisions on my part: Ford v Jivraj, 2023 ABKB 92 , 2023 ABQB92 and 2023 ABKB 331 , 2023 ABQB 331. The first decision resulted from a 5 day trial dealing with Mr.

Jivraj’s application tohave the restraining order/injunction granted by Justice K. Nixon on August 18, 2020 obtained against him by Ms. Ford set aside, as wellas Ms. Ford’s application to have Mr. Jivraj found in contempt of court for breaching the Nixon Order. I dismissed Mr. Jivraj’s application, continued the restraining order (on slightly modified terms), and held Mr. Jivraj in contempt for breaching the

Nixon Order. [2] The second decision dealt with the consequences for Mr. Jivraj in being in contempt of court. [3] Ms. Ford has been entirely successful in these proceedings but for some minor variations to the Nixon Order to enable Mr.Jivraj to respond to any future public comments Ms. Ford may make about Mr. Jivraj. [4] Mr. Harrison’s June 19, 2023 submissions on the costs of these proceedings detail the difficult path to get from the NixonOrder to the trial of these applications. Mr. Jivraj has not responded to Mr. Harrison’s submissions. [5] Mr.

Harrison’s submissions describe at least 10 interim applications and one adjournment application brought by Ms. Fordand an attendance on a cross-examination by Mr. Jivraj of Ms. Ford’s witness Eric Bailey. Costs of one of the applications beforeApplications Judge Mason were set by her at $2,000. [6] The trial was originally set for three days but needed two extra days. Argument had to be by way of written submissions.Once I dismissed Mr. Jivraj’s application and confirmed the restraining order/injunction, there was extensive correspondence dealingwith the form of order.

Following that, there were written submissions regarding the consequences for Mr. Jivraj’s contempt. [7] Costs were directed by me to be dealt with by way of written submissions. II. Submissions [8] Mr. Harrison notes that party costs of the Nixon Order and proceedings up to it being granted were taxed at $7,674.17. [9] He seeks solicitor and own client costs from August 18, 2020 in the amount of $26,721.23 plus disbursements of $8,669.27and GST of $1,769.53, totaling $37,160.03. Mr. Harrison bases the solicitor and client costs on the hourly rate of $150.00 he has beencharging Ms.

Ford on these two matters. [10] In keeping with the Court of Appeal’s recent decision in Barkwell v McDonald, 2023 ABCA 87, he attached a draft bill ofcosts based on

Schedule C to his submissions. [11] The

Schedule C costs are fees of $19,416.50, disbursements of $8,669.27 and GST of $1,404.09. [12] As Mr. Harrison points out in his submissions, the difference between his solicitor and own client costs and

Schedule C costsare $7,674.17. That represents a 40% increase in the fees as allowed by

Schedule C and has the

Schedule C costs being 72% of thesolicitor and client costs incurred by Ms. Ford. [13] Mr. Harrison relies on the principles expressed in Barkwell v McDonald, McAllister v Calgary (City), 2021 ABCA 25, andFIC Real Estate Fund Ltd v Phoenix Land Ventures Ltd, 2016 ABCA 303. III. Analysis [14] I recently discussed Barkwell v McDonald and the Court of Appeal’s final decision on costs in that matter reported at 2023ABCA 87 as well as on McAllister v Calgary in Grimes v Governors of the University of Lethbridge, 2023 ABKB 432. [15] This is a somewhat unusual case because of the low hourly rate charged to Ms.

Ford by Mr. Harrison. As he said in hissubmissions, that rate is significantly lower than rates charged by lawyers of similar experience in similar firms in Calgary. The reasonsfor the low hourly rate are not significant. [16] In Grimes, I observed that the

Schedule C tariff fees are now some eight years out of date considering inflation alone. There, Iincreased the tariff amount by 25% to take that into account in what I considered to be an “ordinary” case (paras 88-89). [17] Here, Mr. Harrison supports his arguments with passages from FIC v Phoenix, which acknowledge that solicitor and clientcosts (let alone solicitor and own client costs) are extraordinary but may be appropriate where there has been misconduct in the litigationitself, as well as other limited circumstances. [18] There is no doubt that despite being the applicant in one of the applications, Mr.

Jivraj has made this litigation much moreprotracted and difficult by his approach to the proceedings and requiring numerous court applications to get this matter to trial. That isone factor that supports at a minimum an increase in

Schedule C costs if not solicitor and client costs. [19] More important here, in my view, are the comments at paragraph 4 in FIC quoting from Sidorsky v CFCN CommunicationsLimited, 1997 ABCA 280, which in turn references Jackson v Trimac Industries Ltd, (ABKB). That case is oftentreated as the seminal decision on solicitor and client costs in Alberta.

Subparagraph 5 includes circumstances where “the defendantswere guilty of positive misconduct, where others should be deterred from like conduct and the defendants should be penalized beyondthe ordinary order of costs” as facts warranting solicitor and client costs. [20] Certainly Ms. Ford’s application to have Mr. Jivraj held in contempt of court, and her success on that application, falls withinthis category. I recognize that the contempt proceedings were only part of the trial before me, but they occupied a significant portion oftrial time and the parties’ submissions. Mr.

Jivraj was wholly unsuccessful and has been punished by a fine payable to the Court. It isonly proper that Ms. Ford recover her costs in enforcing a Court order when it has been wilfully violated.

[ 21 ] For the restraining order/injunction part of the trial, my attitude towards costs may be coloured by my credibility findings against Mr. Jivraj, and my views about his conduct in harassing Ms. Ford. That said, harassment may be criminal and it may now be a tort (see Justice Feasby’s decision in Alberta Health Services v Johnston , 2023 ABKB 209 ) and I found that Mr. Jivraj was guilty of positive misconduct there. With harassment, it is appropriate to send a warning shot that harassment is unacceptable and needs to be deterred. [ 22 ] It is ironic that Mr. Jivraj is benefitting significantly from Mr.

Harrison’s fee arrangements. Had Mr. Harrison been charging Ms. Ford $300 per hour, which in itself would have been on the low side having regard to his years at the bar and experience, a solicitor client bill would have been double what I am awarding. Doubling Column 1 would have provided an over-recovery for Ms. Ford. Using Column 2 would have roughly come to the same as the solicitor and own client costs. An inflationary adjustment alone would have brought the costs close to the actual solicitor client costs. [ 23 ] As a result, I conclude that Ms.

Ford’s submissions that she be made whole for this proceeding are appropriate. She is entitled to costs in the total amount of $37,160.03 as claimed, plus $1,350.00 and GST of $67.50 for the written submissions on costs. [ 24 ] This totals $38,577.53. I have completed the draft order Mr. Harrison included with his argument. Heard by way of written submissions. Dated at the City of Edmonton, Alberta this 10 th day of August, 2023. Robert A. Graesser J.C.K.B.A. Appearances: Richard E. Harrison Wilson Laycraft for the Plaintiff Karim A. Jivraj Self Represented for the Defendant