Wharton v. Smerychynski (2000), 268 A.R. 198 (QB)
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Temp. Cite: [2000] A.R. TBEd. JL.089
Harold Wharton and Celilia Wharton (plaintiffs) v. Peter S. Smerychynski (defendant)
(Action No. 9603-22589; 2000 ABQB 476)
Indexed As: Wharton v. Smerychynski
Alberta Court of Queen’s Bench
Judicial District of Edmonton
Veit, J.
July 11, 2000.
Summary:
Shortly after the plaintiffs sold a quarter section of land to the defendant they realized that they had made a mistake, i.e., they had intended to carve a building site, or acreage, out of the quarter. The plaintiffs sought to have the court correct the mistake by rectifying the agreement or rescinding the sale.
The Alberta Court of Queen’s Bench, in a decision reported at 262 A.R. 73, denied the plaintiffs’ claim for rescission or rectification. The defendant sought an indemnity of costs (approximately $18,000). The party and party costs payable under Schedule C would be approximately $9,000.
The Alberta Court of Queen’s Bench held that the usual costs rules applied and the defendant was entitled to Schedule C costs.
Practice – Topic 7762
Costs – Special orders – Indemnity – After selling a quarter section of land to the defendant, the plaintiffs realized that they had made a mistake, i.e., they had intended to carve a building site out of the quarter -The plaintiffs’ claim for rectification of the agreement or rescission of the sale was unsuccessful – The defendant sought an indemnity of costs (approximately $18,000) – The party and party costs payable under Schedule C would be approximately $9,000 – The defendant argued that: (1) the plaintiffs had sought solicitor-client costs in their statement of claim, so they should be willing to pay a comparable level of costs; (2) in order to be successful, the plaintiffs would have had to prove conduct similar to fraud, but were unable to do so; (3) unless the defendant was indemnified for the expenses to which he was put, he would have to bear some of the costs of the plaintiffs’ mistake – The Alberta Court of Queen’s Bench held that there was no basis for departing from Schedule C costs.
Cases Noticed:
Jacobi v. Board of Education of Aqueduct (Roman Catholic Separate) School District No. 374 et al. (1994), 153 A.R. 241 (Q.B.), refd to. [para. 4].
Counsel:
Joseph J. Jueber, for the plaintiffs;
Katherarine L. Hurlburt, for the defendant.
This matter was heard on June 30, 2000, before Veit, J., of the Alberta Court of Queen’s Bench, Judicial District of Edmonton, who delivered the following decision on July 11, 2000.
