J. Q.B.G. A.D. 1996 No. 3293 J.C. R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA IN THE MATTER OF THE ESTATE OF DALE GERARD ALMASI, LATE OF MELVILLE, IN THE PROVINCE OF SASKATCHEWAN BETWEEN: JADE ANTHONY DALE ALMASI (an infant suing by his litigation guardian, Shannon Lee Kerr) and LORNE ALMASI (Executor of the estate of DALE GERARD ALMASI) RESPONDENT Kerri A. Froc for the applicant Noel S. Sandomirsky, Q.C. for the respondent AMENDMENT TO JUDGMENT KRAUS J. AND FURTHER DIRECTION May 27, 1999 [1] The applicant applies for amendment of my judgment of March 19, 1999 insofar as it relates to costs. At the conclusion of trial, counsel requested that reserve on the matter of costs. It is now clear that the applicant intended to make a submission for award of solicitor and client costs of approximately $70,000. Evidence was led at trial about insubstantial offers made directly between the parties. The further evidence now shows, in fact, that substantial offers were made through counsel, although that evidence was not before the Court at trial. [2] In my judgment awarded the applicant costs on the basis of Column IV, Schedule 1B of the Tariff of Costs of The Queen’s Bench Rules; declined to order solicitor and client costs on the basis that the applicant had always claimed the entire estate assets but did not have the complete evidence as to all offers before me. The applicant submits that the judgment in that particular requires amendment since there was no evidence before the Court at trial about substantive offers made by counsel for the parties. [3] In the circumstances, am satisfied that should reconsider the matter of costs since counsel had intended to make further representations and lead further evidence about substantive offers made prior to trial and that evidence and submissions do have direct bearing on the matter of solicitor and client costs. Rule 343A contemplates amendment of the judgment in these circumstances, and, furthermore, the jurisprudence is clear that the court possesses an inherent power to vary its own order so as to carry out what was intended or even to reconsider or withdraw the decision so long as the order has not been perfected. Friesen et al. v. Saskatchewan Mortgage and Trust Corporation Limited et al., 1926 CanLII 148 (SK CA), [1926] W.W.R. 125; 21 Sask. L.R. (Sask. C.A.), Bailey v. Saskatchewan Registered Nurses’ Assn., [1997] S.J. No. 180 (QL) (Q.B.), Saskatchewan v. Mountain Pacific Transport Ltd. et al. (1995), 1995 CanLII 6106 (SK QB), 129 Sask. R. (Q.B.). Here, the order has not been perfected; indeed, the respondent has been awaiting the outcome of this application in order to satisfy the judgment. [4] Special circumstances which compel the reconsideration of the judgment with respect to the issue include: the Court did not hear argument on the issue of costs at trial; counsel requested that issue be reserved; there is substantial monetary difference between the party and party costs awarded in the judgment, and the solicitor and client costs claimed by the applicant; s. 22 of The Dependants’ Relief Act, 1996, S.S. 1996, c. D-25.01 disallows appeal to the Court of Appeal on an order as to costs and, thus, this Court is the court of last resort on that issue; and, the re-hearing of this issue does not involve the merits of the case and was limited to the issue of costs (although the applicant also seeks direction with respect to post-judgment interest). [5] In light of these authorities and special circumstances, am of the view that am not functus officio, and that have jurisdiction to reconsider the matter of costs, and in particular, to hear the application by the applicant for solicitor and client costs. [6] The applicant argues that solicitor and client costs should be awarded primarily because of the offer of settlement made to the respondent on September 16, 1996 for lump sum payment of $250,000, inclusive of costs, and provided that, if the offer was not accepted by September 27, 1996, claim would be commenced under The Dependants’ Relief Act, 1996, supra to seek the entirety of the estate. In response, the respondent counter-offered settlement for $100,000, inclusive of costs. Neither of those offers were time limited and each was open for acceptance up to and including the trial. The applicant submits that the sum of the award in my judgment, together with the maintenance payments since the time of the offer and the party and party costs (approximately $20,000), would approximate $230,000. Ergo, the applicant submits, that the total recovery of $230,000 is close to the offer of $250,000 made in September of 1996. In effect, the applicant characterizes herself as the successful litigant. [7] The evidence also shows that, following the pre-trial conference, in 1999, the respondent offered settlement at $156,000, based on the report of Dr. Tompkins, an expert retained by the respondent. [8] In the alternative, the applicant seeks solicitor and client costs to be paid from the date of the offer, namely September 16, 1996, which would result in reduction of approximately $5,000 in fees and disbursements. In the further alternative, the applicant requests fixed award of costs in order to avoid taxation. [9] The respondent argues that the position taken before Wimmer J. (who directed the issue to trial) was that the estate was willing to pay reasonable maintenance for Jade based on the needs-based approach, and that the quantum of maintenance could have been summarily determined without the necessity of extensive discoveries and without a lengthy trial. The respondent argues that the position of the applicant before the Court was always to claim that the entire estate should be transferred to satisfy Jade’s maintenance, and that many interlocutory applications and steps would have been unnecessary had the applicant agreed to submit the question of determination of reasonable maintenance to the Court for summary disposition. The respondent submits that the approach of the needs-based assessment for maintenance was upheld in my judgment, and was always the approach consistently taken on behalf of the estate. The respondent argues that the real question is whether the parties were acting bona fide during their negotiations and that the issue should not be determined on the basis of the closeness of the offers. [10] Orkin, in The Law of Costs, (Aurora: Canada Law Book Inc., 1998) at 2-2 accurately described the objective of the court in awarding costs: The Canadian practice in awarding costs has been characterized as an attempt to balance two conflicting principles: one, that successful party to litigation who is free of blame should not be required to bear the costs of either prosecuting or defending the action, and two, that citizens will be unduly hesitant to assert or defend their rights in court if an unsuccessful party is required to bear all the costs of successful one. It is these two conflicting principles that must balance in awarding costs. [11] The court’s discretion to award costs arises out of its inherent equitable jurisdiction and out of Rule 542 of The Queen’s Bench Rules of Court. Rule 542 provides that the costs of all proceedings in the court are in the discretion of the court. This discretion is virtually unfettered but must be exercised judicially on the facts of the case: Benson v. Benson (1994), 1994 CanLII 4554 (SK CA), 120 Sask. R. 17, 68 W.A.C. 17 (C.A.). The Dependants’ Relief Act, 1996 also provides that costs are in the discretion of the court: 21 The court may: (a) direct that the costs of any application be paid out of the estate or in any other manner that it considers just; and (b) fix the amount of the costs, exclusive of necessary disbursements, at lump sum having regard to the value of the estate and the amount of any maintenance applied for or directed by the order. [12] Solicitor and client costs are within the discretion of the court but such discretion is exercised only in rare and exceptional circumstances such as administration suits and actions brought by trustees or where there has been reprehensible, scandalous or outrageous conduct meriting the court’s censure: Canada Permanent Trust Company v. Saunders et al., 1938 CanLII 167 (SK CA), [1938] W.W.R. 657 (Sask. C.A.); Young v. Young (1993), 1993 CanLII 34 (SCC), 108 D.L.R. (4th) 193; S.C.R. (S.C.C.); and Law Society of Saskatchewan v. Robertson Stromberg, 1996 CanLII 7176 (SK QB), [1996] 10 W.W.R. 737, 149 Sask. R. 226 (Q.B.). ORDERS [13] Solicitor and client costs of approximately $70,000 claimed by the applicant are not appropriate here. The conduct of the respondent cannot be characterized as reprehensible, scandalous or outrageous. The respondent’s unwillingness to make full financial disclosure did contribute to the increase of costs but is insufficient to merit the censure of the Court through full solicitor and client costs. [14] In addition, the applicant’s conduct was not entirely pure. The judgment of Madam Justice Gunn in this matter, dated April 29, 1998 at paragraph states that under The Dependants’ Relief Act, 1996, there is nothing that indicates that person entitled to part of an estate is beneficiary but rather, that beneficiary may be found entitled to “maintenance”. In spite of this ruling, the applicant continued to claim the whole of the estate and to pursue full disclosure of the financial worth of the estate. The applicant argued that the Court needed to know the full extent of the estate so as to properly determine the applicant’s entitlement to the estate. This argument cannot be accepted. employed needs-based approach to assess maintenance, as dictated by The Dependants’ Relief Act, 1996, and it was merely happenstance that the maintenance order was roughly equivalent to one-half of the estate. [15] The Court is faced with two equally untenable positions in determining the costs. If the costs of the litigation were to be paid out of the award, the remainder may be insufficient to meet Jade’s anticipated needs. Yet, this is not an appropriate case in which to order full solicitor and client costs. [16] In this situation, however, it is appropriate for the Court to fix the costs to the applicant in lump sum: Law Society of Saskatchewan v. Robertson Stromberg, supra. [17] In fixing an amount, have considered the principles in Nalder v. Hawkins (1833), Myl. K. 243; 39 E.R. 937 in Re Champ (1986), 1986 CanLII 3001 (SK QB), 47 Sask. R. 305 (Q.B.), It is undeniable that the habit of the court has been to encourage persons to come forward as next friends for the purpose of obtaining its aid in [sic] behalf of parties incapacitated to sue for themselves. The language of the books is frequently, that next friends should not be discouraged; but there are cases which go much further, both in their language and in their tendency; cases which, both by the words used and the things done, give great encouragement to undertake the office. .This does not mean, however, that next friend can do just as he pleases. [18] The testator’s failure to provide for his dependant son, Jade, did necessitate the application of the next friend under The Dependants’ Relief Act, 1996. However, the length of time to trial and the number of interim applications are partially attributable to the applicant who continued to make exaggerated claim for the whole of the testator’s estate well past the time when it was appropriate. This contributed to the respondent’s unwillingness to disclose the financial worth of the estate and prolonged the litigation and as such should be factor into the costs awarded: Electronic Superstore Ltd. v. Geransky Brothers Construction Ltd. (1991), 1991 CanLII 7581 (SK QB), 90 Sask. R. 150; Roberts v. Teslyk (1987), 1987 CanLII 2412 (BC SC), 21 B.C.L.R. (2d) 214 (B.C.S.C.). [19] am mindful that it is incumbent upon the Court not to permit unnecessary litigation to be paid for by the estate: Orleski v. Reid, 1985 CanLII 2328 (SK QB), [1985] W.W.R. 560, 38 Sask. R. 38 (Q.B.); and Re Wolfes Estate, 1957 CanLII 591 (BC CA), [1957] 21 W.W.R. 85 (B.C.C.A.). [20] must also consider the offer of settlement made by the applicant to the respondent on September 16, 1999. Rule 184C of The Queen’s Bench Rules allows the court to take into account offers of settlement that do not meet the requirements of the other rules in Part 14A of the Rules in assessing appropriate costs. These settlement rules attempt to promote settlement without incurring the cost and inconvenience of trial. Here, the applicant made the offer well before the application went to trial and the offer remained open until judgment was given. The amount of judgment was approximately $20,000 less than the offer which was genuine and given in the spirit of compromise and settlement. From that perspective, it was reasonable and would have avoided further litigation. The respondent declined to accept the offer and undertook the risk that costs would be awarded against the estate at trial and now must bear some additional cost for failure to settle. [21] have also considered the nature of the issue, the time spent by counsel, the degree of the applicant’s success and the desire to avoid any further delay and cost that may be incurred through taxation of costs. [22] In all of the circumstances, I order fixed costs to the applicant in the amount of $47,000, together with disbursements. [23] Secondly, the applicant applies for directions as to interest on the award. am asked to consider the respondent’s position that the $200,000 award will not be paid until formal judgment is taken out. [24] The Executions Act, R.S.S. 1978, c. E-12 provides (in s. 30) that every judgment debt shall carry interest at the rate of five percent per annum from the time of entering the judgment until the judgment is satisfied. This section must be interpreted in the light of Rule 337 of The Queen’s Bench Rules which states that the entry of judgment shall be dated as of the day that judgment is pronounced unless the court otherwise orders and that the judgment takes effect from that date. In Delaire v. Delaire, 1996 CanLII 6752 (SK QB), [1996] W.W.R. 469, 147 Sask. R. 161 (Q.B.), the Court held that the debt created by judgment is debt due and payable as of the date of pronouncement and that collection proceedings may be properly taken before formal judgment is entered. This general principle is applicable here. The judgment of March 19, 1999 created debt owing to the applicant from the respondent and the debt became due and payable on the date of pronouncement, being March 19, 1999. The Executions Act states that interest runs “from the time of entering judgment” and not from the time of entering formal judgment. [25] Therefore, order that the respondent pay to the applicant post-judgment interest at rate of five percent per annum from the date judgment was pronounced, being March 19, 1999, in accordance with s. 30 of The Executions Act, and until judgment is satisfied.
The applicant applies for amendment of the judgment dated March 19, 1999 as it relates to costs. At the end of trial, the applicant requested the Court to reserve on the matter of costs. The applicant intended to make a submission for award of solicitor and clients costs. Evidence was led at trial about insubstantial offers made directly between the parties. Further evidence now indicates that substantial offers were made through council although not led at trial. The applicant argues that solicitor and client costs of $70,000 should be awarded because the offer to settle of $250,000 is close to the total judgment award of $230,000 including party and party costs of $20,000. The respondent takes the position that the estate was willing to pay reasonable maintenance costs and the quantum of maintenance could have been summarily determined without the necessity of extensive discoveries and without a lengthy trial. The respondent submits the approach of a needs-based assessment was upheld by the judgment and is always the approach always taken on behalf of the estate. The respondent argues the real question is whether the parties were acting bona fide during their negotiations and the issue should not be determined on the basis of the closeness of the offers. HELD: Solicitor and Client Costs of $70,000 are not appropriate in this case. The applicant's conduct was not entirely pure. The applicant was made aware in a prior judgment that under The Dependants' Relief Act there is nothing to indicate that a person is entitled to part of an estate as a beneficiary but rather that a beneficiary is entitled to maintenance. In spite of this ruling the applicant continued to claim the whole of the estate and to pursue full disclosure of the financial worth of the estate. Solicitor and client costs are within the discretion of the court but such discretion is exercise only in rare and exceptional circumstances. The conduct of the respondent cannot be characterized as reprehensible, scandalous or outrageous. The respondent's unwillingness to make full financial disclosure did contribute to the increase of costs but is insufficient to merit full solicitor and client costs. The Court awards fixed costs to the applicant in the amount of $47,000 together with disbursements.