581257 ALBERTA LTD v AUJLA, 2016 ABQB 509

mandersCheid j

4.24: Formal offers to settle
4.29: Costs consequences of formal offer to settle
10.33: Court considerations in making costs award

Case Summary

In a previous decision, Manderscheid J. held that the Defendants, Balwinder Aujla (“Balwinder”) and Harwinder Aujla (“Harwinder”), were liable for $165,254 and $9,019, respectively, for monies stolen from the Plaintiff. In obtaining Judgment against the Defendants, the Plaintiff beat a formal settlement offer (the “Offer”), which the Defendants had refused.

Manderscheid J. applied Rule 10.33 to limit Costs against Harwinder, and ordered Double Costs against Balwinder pursuant to Rule 4.29, for all steps taken after the service of the Offer, including the cost of experts. The Defendants tried to defeat the Plaintiff’s entitlement to Double Costs, arguing that the Offer was not a true offer under Rule 4.24 as it was an offer subject to joint acceptance. The Defendants argued that neither one of them could accept and act upon the Offer independently of the other; therefore, the Offer was not a true offer under the Rules. Manderscheid J. rejected this argument, and held that any one of the Defendants could have accepted the Offer without commitment from the other.

Justice Manderscheid awarded the Plaintiff $1,000 in additional Costs against each of the Defendants pursuant to Rule 10.33(2)(b). Rule 10.33(2)(b) allows the Court to vary Costs when a party refuses to admit something which should have been admitted. Here, the Defendants refused to admit bank records for the truth of their contents, despite the fact that this case stemmed from a re-Trial and the Defendants had admitted the bank records in the first Trial, and that the Defendants were best positioned to “determine the accuracy of their own bank records”. Accordingly, Manderscheid J. awarded the Plaintiff additional Costs for the time and inconvenience of preparing Affidavits to admit the bank records.

Manderscheid J. considered whether it was appropriate to depart from the Double Costs Rule pursuant to Rule 4.29(4)(e). Since Balwinder would pay more in Costs than actual damages, the Defendants argued that this would undermine the public’s confidence in access to justice. Rule 4.29(4)(e) provides that the Double Costs Rule does not apply if, in special circumstances, the Court so orders. However, the Defendants failed to cite any special circumstances. Thus, His Lordship upheld the Double Costs award against Balwinder.

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