SFM v MRM, 2020 ABQB 401


12.41: Notice to disclose documents
SCHEDULE C: Tariff of Recoverable Fees

Case Summary

This was a Decision regarding Costs in a family litigation matter. A primary issue was whether Column 2 or Column3 of Schedule C applied. After determining that the Column 2 range applied, Justice Lema assessed whether the Plaintiff’s pursuit of additional, non-monetary relief (for example, a divorce) changed the Costs analysis. His Lordship reviewed the potential application of Rule 1(4) of Division 1 in Schedule C and concluded that the Rule did not apply to interlocutory proceedings, regardless of whether monetary relief was also pursued. Ultimately, His Lordship determined that Column 2 of Schedule C applied.

The Court then analyzed what tariff item in Schedule C covers a Noting in Default and Default Judgments. Justice Lema reviewed item 1(1) of Division 2 and found that it did not apply, as a Noting in Default is not a “commencement document” or “pleading” as required by item 1(1). The Court ultimately determined that item 6(2) of Division 2 (“Uncontested Applications”) applied, even though the Application was of “desk character”. Indeed, the Court underscored that item 6(2) does not distinguish between “Court appearances” and “desk” Applications.

The Court also analyzed whether any Notice to Disclose efforts by the Plaintiff constituted “thrown away costs” for which the Defendant would be responsible. Justice Lema reviewed Rule 12.41 and noted that a Notice to Disclose has no fixed lifespan. Indeed, nothing in the Rule indicates that the Notice to Disclose served with the Statement of Claim somehow expired, necessitating a new Notice to Disclose. The Court found that with the first Notice to Disclose continuing to oblige the Defendant to provide disclosure, the second Notice to Disclose was not needed, and thus Costs regarding the second Notice to Disclose were not recoverable.

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