Condominium Corporation 052, 2024 ABKB 55

Court of King’s Bench of Alberta Citation: Condominium Corporation 052 0580 (o/a The Tradition at Southbrook) v Carrington Holdings Ltd., 2024 ABKB 55 Date: 20240129 Docket: 1103 01915 Registry: Edmonton Between: Condominium Corporation 052 0580 (o/a The Tradition at Southbrook) Plaintiff (Respondent) - and - Carrington Holdings Ltd., Carrington Construction Edmonton Ltd., Carrington Developments Ltd., Carrington Land Ltd., Carrington Southbrook Developments Ltd. and Ken Ferchoff Defendants (Applicants) - and - Jetco Mechanical Limited, Andy Yu-Ho Luk, Bauman Builders Inc., the Great Canadian Roofing Corporation, AGN Engineering Ltd., Andrzej Jerzy Walczak (aka Andrew Walczak), and AGN Consulting Group

(1994) Ltd., International Painting & Drywall Ltd., Dyand Mechanical Systems Inc., et al, Reinbold Engineering Group Inc., et al, Christensen & McLean Roofing Co., et al, Gracom Masonry Ltd., 634639 Alberta Ltd. o/a Rebus Plastering & Exteriors and Others Third Parties (Third Party Applicants)

_______________________________________________________ Decision on Costs of the Honourable Justice S.N. Mandziuk _______________________________________________________ I. Introduction [ 1 ] On September 16, 2022, I issued my Reasons for Decision in this matter, which are reported at 2022 ABKB 623 (the Decision).

The Decision concerned an application (the Delay Application) by the Defendants (defined as Carrington in the Decision) to dismiss a legal action brought against them by the Plaintiff (defined as the Condo Corp in the Decision) under Rules 4.31 and 4.33 of the Alberta Rules of Court, Alta Reg 124/2010 (the Rules ). [ 2 ] At the same time, some of the Third Parties applied to dismiss – again under Rules 4.31 and 4.33 – the Third Party Claims brought against them by the Defendants. [ 3 ] The Defendants were successful, and I gave the following direction concerning costs at paras 190-191: Carrington has been successful in its application to dismiss the Condo Corp’s action.

The Condo Corp will pay Carrington’s costs of the action and the costs of the Third Parties who attended and made representations in this delay application . Those who did not attend and make representations will not have their costs. I have in mind the written order of oral submissions document provided by the parties as a delineation of who participated. Costs will be under

Schedule “C” of the Rules . (Emphasis Added) [ 4 ] Subsequently, an Order flowing from the Decision was granted by me on September 16, 2022, and filed on October 11, 2022 (the Order). The Order was “approved as to the order granted” by counsel for the Plaintiff, the Defendants and various Third Parties, by their signatures in counterpart. [ 5 ] Paragraph 3 of the Order reads: The Third Party Applicants Present at the Hearing [1] are each awarded their costs of the Defendants’ Third Party Action, including but not limited to costs of their respective Third Party Applications, under

Schedule “C” of Rules of Court [sic], payable by the Plaintiff. [ 6 ] Paragraph 4 of the Order specifies that “[n]o costs are awarded or payable to the Third Party Defendants, other than the Third Party Applicants Present at the Hearing”. [ 7 ] The Plaintiff seeks correction of the Order under Rule 9.12 and requests that I address a referral by the Assessment Officer under Rule 10.39. Alternatively, the Plaintiff seeks clarification of the costs award as it concerns the Third Parties, citing Rule 9.14. II.

Status of the Defendant in this Application [ 8 ] The Defendant made submissions with respect to this application. [ 9 ] The Defendant argues that it has standing on this application as a signatory to the Order and as a served party, and points to Rule 6.3(3). That rule deals with the process of making an application to the Court, and reads: Unless an enactment, the Court or these rules otherwise provide, the applicant must file and serve on all parties and every other person affected by the application, 5 days or more before the application is scheduled to be heard or considered, (

a) notice of the application, and (

b) any affidavit or other evidence in support of the application. [ 10 ] The Plaintiff argues that the Defendant is now an “unrelated [person] who [has] no interest in the question put before the Court”. Further, the Plaintiff argues that any interest the Defendant may have is hypothetical and speculative. [ 11 ] In Votour v Tucker , 2009 ABQB 722 , Justice Veit examined the former Rule 384(1), which is the functional equivalent of

Rule 6.3(3). Justice Veit held that as notice was an element of natural justice, the

interpretation of the Rule should be purposive and “generous, rather than technical” (at para 28). Further, she held that the “notion of being ‘affected’ applies not only to parties, but also to persons who are not parties, but who are affected, and who are therefore entitled to be heard” (at para 29).

Finally, Justice Veit found that even persons who are not parties to the lawsuit but are affected by a motion are entitled to become parties to that motion (at para 30). [ 12 ] There is a strong presumption that a party to an action has a right to make submissions: 783783 Alberta Ltd. v Canada (Attorney General) , 2010 ABCA 226 at para 18 . [ 13 ] The Defendants signed the Order and were served with this application via email on September 18, 2023. Taking a generous view of the

interpretation of “affected” in Rule 6.3(3), if any changes or corrections are made to the Order, it was appropriate to serve the Defendants and they were entitled to make submissions if they chose to do so. III. Rule 9.12 [ 14 ] Rule 9.12 gives the Court a discretion to “[o] n application ... correct a mistake or error in a judgment or order arising from an accident, slip or omission”. The Plaintiff asserts that the Order should be amended as it contains an error.

Specifically, it gives the Third Parties costs of the action not just costs of the application. [ 15 ] Rule 9.12 is known as the “slip rule” and is designed to allow a court to correct an error in a judgment that is “plain and manifest” ( Remington Development Corporation v Canadian Pacific Railway Company , 2023 ABKB 493 at para 11 , citing Lewis Estates Communities Inc v Brownlee LLP , 2013 ABQB 731 at para 33 ). [ 16 ] The Alberta Court of Appeal in Bissky v MacDonald , 2020 ABCA 242 , defined the scope of Rule 9.12 as follows: [6] Rule 9.12, similar to the predecessor Rule 339, operates in narrow circumstances when - by a mere technical, clerical or drafting error - the order or judgment does not express the court’s obvious intention.

The rule does not confer a wide power for parties to reargue issues or courts to re-decide issues already decided [citations omitted]. [ 17 ] There is no error or mistake in the Order which warrants correction. [ 18 ] The Decision states that “ [t]he Condo Corp will pay Carrington’s costs of the action and the costs of the Third Parties who attended and made representations in this delay application” and the relevant paragraph of the Order states “[t]he Third Party Applicants Present at the Hearing are each awarded their costs of the Defendants’ Third Party Action, including but not limited to costs of their respective Third Party Applications, under

Schedule “C” of Rules of Court [ sic ], payable by the Plaintiff”. [ 19 ] The costs element of the Decision must be considered as a whole, and the intention is to grant costs of the whole action to the Defendants and to those Third Parties who were involved in the Delay Application. The costs include the Delay Application itself. There are other third parties in the action who did not participate in the Delay Application; they are not granted their costs. [ 20 ] The costs of the Third Parties (as limited and defined in the Order) are payable by the Plaintiff.

There is a reference in the Decision to the Defendant’s “costs of the action” being payable by the Plaintiff and the Order refers to, in substance, the same thing: “costs of the Defendants’ Third Party Action” which would of course include the costs of the Third Parties who participated in the Rule 4.31 and 4.33 application in the first instance. “Costs of the action” and “the costs of the Third Parties” are linked. [ 21 ] Furthermore, the parties to the costs award – the Plaintiff, the Defendants and this participating group of Third Parties – approved the form of Order in question, and I signed it more than a year ago. [ 22 ] There is no mistake in the Order.

There is no irregularity. The Order reflects my intention, as set out in the Decision. The Plaintiff’s Rule 9.12 application is dismissed. IV. Assessment Officer Referral: Rule 10.39 [ 23 ] Rule 10.39(1) allows an Assessment Officer to “ direct any question arising about the assessment of costs payable to be referred to the Court for a decision or direction”. [ 24 ] The Plaintiff has reached an agreement with at least one of the Third Parties, and a full-day Assessment Hearing occurred on September 21, 2023, with the other parties entitled to costs present.

The Defendant’s costs were assessed and have since been settled, however the Assessment Officer determined that they could not proceed with the assessment of costs owing to the Third Parties. [ 25 ] Pursuant to Rule 10.39(1), the Assessment Officer requested direction on the following question: What is the appropriate Column under

Schedule C under which to assess the costs owing to each of the Third Parties? [ 26 ] The Plaintiff’s position is that costs should be assessed under Column 1. The Third Parties’ collective position is that costs should be assessed under Column 5. [ 27 ] I must reiterate that this is not an opportunity to relitigate the merits of awarding costs to each of the relevant Third Parties. That has been ordered and is final in terms of the Court of King’s Bench. [ 28 ] The appropriate Column in

Schedule “C” is determined by the amount claimed in the Plaintiff’s Statement of Claim: Canniff v Gardner , 2008 ABQB 685 at para 12 . Section (1)(3)(

a) of

Schedule “C” of the Rules also stipulates that the dollar amount indicated in

each column is recoverable in relation to the amount claimed by the plaintiff. [ 29 ] Justice Renke’s decision in Annett v Enterprise Rent-A-Car Canada Ltd , 2020 ABQB 74 at para 12 , clarifies that in cases such as this, “only two numbers are material: the amount claimed by the Plaintiff in his pleadings and the amount of the Plaintiff’s recovery”. There was no settlement here, and the amount claimed by the Plaintiff is sufficient to resolve the disagreement over which column of

Schedule “C” applies. [ 30 ] There is disagreement between the parties as to whether this principle applies to costs payable to a third party. In this instance I am satisfied that it does. [ 31 ] According to the materials before me on this application, the Plaintiffs sought damages of $5,000,000.00 in the Statement of Claim. [ 32 ] The Plaintiff argues that the Third Parties never individually faced jeopardy that amounted to $5,000,000.00 and that their claims were inchoate. [ 33 ] The Plaintiff’s action was dismissed in the Delay Application.

The Plaintiff did not directly sue the Third Parties, but they were brought in because of the Plaintiff’s claim. They incurred costs as a result. The Third Parties faced liability, and they took steps in response to the Plaintiff’s action which has now been dismissed. [ 34 ] Weatherall v Seaba , 2009 ABQB 173 sets out situations where the Plaintiff should, in fairness, pay the costs of third parties.

One such situation is “where t he third party proceedings follow naturally and inevitably upon the institution of the Plaintiff’s action, in the sense that the defendant had no real alternative but to join the third party” (at para 16). [ 35 ] The work of a developer is undertaken by an array of contracted parties. Here, the Plaintiff sued the developer, and it flows naturally that the developer would have joined the myriad of sub-contractors which the Third Parties comprise.

I am satisfied that the Defendant’s decision to bring the Third Parties into this action was inevitable upon the initiation of the action by the Plaintiffs. [ 36 ] The relevant Third Parties will have their costs awarded at the Column 5 rates (assuming that this matches the amount claimed in the Statement of Claim), subject to the Assessment Officer’s approval of their individual costs claims. [ 37 ] The Third Parties also submit that they are entitled to extra half days under item 8(1)(

b) of

Schedule “C” with respect to the Delay Application. The Delay Application lasted 3 days, or 6 half days. The Third Parties must submit their Bills of Costs and it will be up to the Assessment Officer to decide what is appropriate under their powers in Rules 10.35-10.43. V. Rule 9.14 [ 38 ] The Plaintiff made an application (in the alternative) to, in essence, clarify the Order under Rule 9.14, which I have found accurately reflects the Decision. [ 39 ] Rule 9.14 states: On application, the Court may, after a judgment or order has been entered, make any further or other order that is required, if (

a) doing so does not require the original judgment or order to be varied, and (

b) the further or other order is needed to provide a remedy to which a party is entitled in connection with the judgment or order. [ 40 ] Rule 9.14 grants a court the power “to make a further order when it is needed in order to provide the litigants with the relief to which they are entitled” ( Strathcona (County) v Hansen , 2014 ABCA 17 at para 6 ). [ 41 ] Rule 9.14, like Rule 9.12, is one of the few exceptions to the functus doctrine, and it is clear from the case law that it is not to be used when a further order would amount to a variation of the original order ( First Calgary Financial Credit Union Limited v Inspired Luxury Homes Inc , 2014 ABQB 787 at paras 24-25 ). [ 42 ] I am not prepared to make any order which would, in effect, vary the Decision. [ 43 ] To be clear, the Defendants and the Third Parties who participated in the Delay Application, as defined in the signed Order, will have their costs of the action payable by the Plaintiff, under

Schedule “C”. This includes the costs of the Delay Application. VI.

Summary and Conclusion [ 44 ] The Plaintiff’s liability for costs is a decided issue, subject to any available avenue of appeal. [ 45 ] The Plaintiff’s Rules 9.12 and 9.14 applications are dismissed. [ 46 ] The Third Parties identified in the Decision shall have their costs of the Delay Application and the action, as against the Plaintiff. [ 47 ] The Third Parties will have their costs under

Schedule “C” determined by the amount claimed in the Statement of Claim filed by the Plaintiff.

[ 48 ] The Third Parties did not incur costs as a group, they incurred them individually as unrelated entities and their costs will depend on what steps were taken in the Third Party proceedings in which they were involved. [ 49 ] The Third Parties to whom costs were awarded in the Decision and who were involved in this application shall have their costs of this application. [ 50 ] There will be no costs payable to the Defendant with respect to this application. Even though the Defendant had standing to appear, their submissions were superfluous to the real issue: Third Party Costs.

Written submissions received November 10, 17 and 24, 2023. Dated at the City of Edmonton, Alberta this 29 th day of January, 2024. S.N. Mandziuk J.C.K.B.A. Appearances: Roberto Noce, Q.C. Michael Gibson Miller Thomson LLP for the Plaintiffs Edward Furs and Riley Snider Witten LLP for the Defendants Peter Gibson and Paul Kolida Field LLP for the Third Party Defendant Jetco Mechanical Ltd Joachim Chau CBM LLP for the Third Party Defendant Bauman Builders Inc. Malcolm Jones Weir Bowen LLP for the Third Party Defendant Great Canadian Roofing Corporation

Erik Holmstrom McLennan Ross LLP for the Third Party Defendant International Painting & Drywall Ltd. Sean Stepchuk Aviva Trial Lawyers For the Third Party Defendant Dyand Mechanical Systems Inc. (and related parties) Mohamed Denny McLennan Ross LLP for the Third Party Defendants Royco Holdings Ltd., C.J. El Corporation (and related entities) Leilani Karr Brownlee LLP for the Third Party Defendant Gracom Masonry Ltd. Rob McKay Snyder & Associates LLP for the Third Party Defendant 634639 Alberta Ltd. operating as Rebus Plastering & Exteriors (and related entities) Katie Stys and Kevin Pedersen Gowling WLG LLP for the Third Party Defendant AGN Consulting

(1994) Ltd., Andrzej Jerzy Walczak (and related entities) Brad Nattrass Brownlee LLP

for the Third Party Defendant Reinbold Engineering Group Inc. (and related entities)