Last week’s Court Rulings from the Alberta Court of King’s Bench, Court of Appeal and SCC.
Edited by Amanda Kostek and Christie Dewar
Condominium Corporation No 0840294 v Oakley, 2023 ABKB 668
Waiver of Subrogation Clause | Not Binding
Kantor v Kantor, 2023 ABCA 329
Costs | Appeal
Condominium Corporation No 0840294 v Oakley, 2023 ABKB 668
Amanda Kostek of CBM Lawyers successfully argued that a waiver of subrogation clause did not preclude recovery. At issue was whether the Plaintiffs were bound by a waiver of subrogation clause contained in the Resident’s Associations Rules and Regulations, which were not filed at land titles. The Court concluded that the Rules and Regulations did not meet the requirements of the prevailing legislation, and were therefore not binding. Further, the waiver of subrogation clause did not apply to individual unit owners.
Kantor v Kantor, 2023 ABCA 329
The Court of Appeal affirmed that when enhanced costs are sought on appeal based on misconduct or delay, that misconduct or delay cannot have been historical in the litigation and must specifically relate to the appeal:
[8] Misconduct or conduct unnecessarily delaying proceedings can justify enhanced costs: R 10.33(2)(a), (d) and (f). However, when appeal costs are at issue, the misconduct or delay must relate to the appeal. It is not enough that there was misconduct in the court appealed from: Huerto v Canniff, 2015 ABCA 316 at para 15; Firemaster Oilfield Services Ltd. v Safety Boss (Canada) (1993) Ltd., 2002 ABCA 88 at para 3; Abt Estate v Cold Lake Industrial Park GP Ltd, 2019 ABCA 145 at para 3.
Further, the fact that the appeal lacked merit will not, absent evidence of bad faith, be a basis for enhanced costs:
[10] … An unmeritorious appeal itself does not justify elevated costs: Young v Young, 1993 CanLII 34 (SCC), [1993] 4 SCR 3 at 125; Goold Estate v Ashton, 2017 ABCA 315 at para 3. It has to be shown that the appeal was not brought in good faith or was frivolous. Although Mr Kantor’s appeal was unmeritorious, there is no evidence of bad faith and it cannot be described as frivolous. Declining Ms Kantor’s offers to settle the costs of the appeal was also not misconduct warranting enhanced costs. No formal offer to settle costs of the appeal was served, and Ms Kantor continually sought some measure of enhanced costs. The lawyers had a genuine disagreement about various aspects of costs such as whether enhanced costs were justified and which Schedule C column was appropriate.
The Court affirmed that an award of solicitor client costs is rare, and it must be reasonable to expect the losing party to pay a proportion of fees incurred:
[13] First, the amounts charged to the successful client must be “reasonable” as between the lawyer and the client, taking into account the factors in R 10.2. It is extremely rare for courts to award “solicitor and own client costs” to a successful party in litigation: Barkwell at para 56. Second, it must be reasonable to expect the losing party to pay costs calculated as a proportion of the fees reasonably charged by the lawyer to the successful party, considering the factors listed in R 10.33. An overriding consideration is proportionality between the amount of costs claimed and the issues and amounts involved in the litigation: Barkwell at para 57.