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The way I read the information is that court clerks gather up receipts from both parties to calculate the allowable costs that are applied to the final judgement.

The court clerks do not have the authority to award legal expenses in the final judgement. The Judge will calculate what that would be depending on the circumstances.

I would suggest the following link to a Paralegal company that operates in the Alberta Small Claims Court shows that judges include legal costs in their judgements.

When you hire U-SUE, as your Agent we can claim back what is known as “Party to Party Costs”. The courts know that we charged a fee for our service therefore will grant costs to offset your costs. Costs that are awarded back in court are usually calculated on a percentage basis between 5 – 10% of the Judgment amount – for each 1/2 day of trial. These “party to party” costs are determined by the Judge. Sometimes the Judge awards costs that are higher than what you paid U-SUE!

https://usue.ca/frequently-asked-question/
 

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Discussion Starter #62
No disagreement that the clerks apply costs to a judgement for a default, but this discussion isn't about a default judgment.

As to hearsay evidence, in the form of emails, text messages, or other forms of social media, while emails were at one time considered strong evidence, recent software technology is available that can alter the content of messages while retaining the original date stamp. It has raised the issue of legitimacy of emails. They may be accepted into evidence, but the judge may not accept them without a witness to confirm their authenticity. Any defense lawyer worth his diploma would immediately object to the entrance of emails into evidence and point out that he cannot cross examine emails. Of course, judges can do whatever they want, subject to appeal at a later date.

I recently attended a criminal trial where the judge wouldn't allow a pile of text messages from the defense when the Crown objected they could have been tampered with.

The preferred solution appears to be that the parties to emails must attend court and testify. I suppose in high level crimes the emails could be retained from the telco.

In any event, the OP needs to consider the form in which they intend to present the emails to the court and consider requiring the real estate agents to testify.

He may want to consider the use of this technology.

https://www.titanfile.com/blog/email-as-evidence/
My realtor asked me to put his name as a witness. So, he will be presenting at the court.

Thanks for the link, I will check it out.
 

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I would suggest the following link to a Paralegal company that operates in the Alberta Small Claims Court shows that judges include legal costs in their judgements.
Difficult to imagine a source of legal authority more authoritative than a firm of non-lawyers carrying on business under the name and style of "U-SUE".

So I checked this source:

Calgary Legal Guidance, funded in part by the Alberta Law Foundation.

https://clg.ab.ca/programs-services/dial-a-law/things-to-consider-before-going-to-court/

It mentions ability to recover disbursements, nothing about legal fees.

Perhaps even better is to rely on the law laid down by the AB legislature. In this case the relevant law is the PROVINCIAL COURT CIVIL PROCEDURE REGULATION, Alberta Regulation 176/2018, which provides, in part:


Litigation expenses recoverable as costs

39(1) The litigation expenses recoverable as costs between the parties are as follows:
(a) for fees paid to the clerk under section 1(a) to (d) of the Provincial Court Fees Regulation (AR 18/91), the amount of the fees actually paid;
(b) for service of a civil claim

(i) by a private process server, the actual cost, for all activities necessary for effecting service, including
(A) searches of any registry maintained by the Government of Canada, the Government of Alberta or a local authority,
(B) service attempts by the process server, and
(C) travel by private vehicle, in accordance with any directive issued by the Treasury Board respecting travel, meal and hospitality expenses, as though the private process server were an employee as defined in the Public Service Act,
(ii) by a method of mailing as designated in the Provincial Court Act or this Regulation, the actual cost, and
(iii) by a method directed by the Court, the amount as fixed by the Court;

(c) for the search of any registry maintained by the Government of Canada, the Government of Alberta or a local authority, the actual cost of the search;
(d) for the preparation by an expert witness of an expert witness’s report, or for the preparation by an expert witness for a trial, and for the expert witness’s attendance at the trial, the amount as fixed by the Court;
(e) for the attendance of a witness at a trial, the amount of the allowance prescribed under section 28 actually paid or reimbursed, as the case may be, to the witness to travel to, attend at and return from the location of the trial;
(f) for a default judgment entered under section 6, the amounts set out in clauses (a) to (c).
(2) Despite subsection (1)(d) and (e), the Court may, in its discretion, reduce or disallow the costs claimed for a witness if the Court is of the opinion that
(a) the witness did not present evidence that advanced the claim or defence, or
(b) a proposed expert witness
(i) was not qualified by the Court as an expert witness, or
(ii) gave opinion evidence that duplicated opinion evidence given by another expert witness at the hearing.
(3) The Court may, in its discretion, award costs for additional classes of litigation expenses not specified in subsection (1).

So, much like BC, the Alberta legislation contemplates awarding certain classes of disbursements only. The last line quoted above allows for an award of "additional classes of litigation expenses", which could open the door to legal fees. This morning I called a lawyer I know in Calgary. She says she has not handled a small claims case for awhile, but when she did, she never saw costs awarded. Admittedly, she is an immigration lawyer and also does some criminal defence work, so cannot be taken as the last word on the subject, but i'll stick to my view that taking an action to small claims court in AB and losing is unlikely to result in a crippling award of legal costs.

Again, the underlying premise of a small claims court is to act as a court for the ordinary person who has a claim to be heard in a somewhat informal manner (I know I'll get more argument on this from sags) but that includes a more elastic application of the rules of evidence. It is intended that litigants appear on their own, without counsel and it is recognized that they might not be well-schooled in the law, the rules of civil procedure, etc. Some claims, while appearing meritorious to the individual litigant, might appear less so to a judge. While I can see an unsuccessful claimant being mulcted in costs where the claim is wholly devoid of merit, is frivolous and vexatious, such will not generally be the case.

I will say that, in BC, the law is more certain. Lawyers are to be kept out of the small claims process and legal fees may never be recovered:

SMALL CLAIMS ACT, [RSBC 1996] CHAPTER 430

Costs
19 (1)The Provincial Court may determine, in accordance with the rules, the amount of costs that are payable by one party in a proceeding under this Act or the rules to another party in the proceeding or it may direct a registrar of the court to determine the amount.

(2)If a registrar of the Provincial Court determines the amount of costs, any party to the proceeding may ask the court to review the registrar's decision on costs.

(3)If the rules provide for a reasonable fee, charge or other expense, the Provincial Court or a registrar of the court may determine what amount is reasonable.

(4)The Provincial Court must not order that one party in a proceeding under this Act or the rules pay counsel or solicitor's fees to another party to the proceeding.

Not long ago, BC introduced the "Civil Resolution Tribunal" which now deals with most claims under $5,000. I just finished handling my first case there. A construction law case. A well-heeled but disgruntled homeowner decided not to pay the last $4,000 owing to my "client" for a construction project. The procedure at the CRT is a bit unsettling. Online only. No oral hearing. No ability to cross-examine or to have witnesses testify in person. A form of "rough justice". My client has no internet connection and scant ability to handle any kind of paperwork, even cyberspace paper. So I took it on. It included a telephone "mediation" session.

The small claims court here has used a forced mediation session as a pre-trial mechanism here for some years. In my view, a complete waste of time. By the time process has been issued, the battle lines are drawn and each side is convinced of the rightness of their cause and wants their day in court.

So, of course, the phone mediation session ended with the predictable result. The defendant offered peanuts to settle and my client offered to shave peanuts off the final bill. So no deal. That required each of us to submit written argument within about 8 days as I recall. I prepared a stellar piece of work, only to be told on uploading that I was limited to 10,000 characters and my argument was over 12,000. Like I said. Rough justice. So I had to spend an hour or so, closely inspecting every point and every word and deciding on what could be scrapped, while still retaining the essence. Not fun, but I did it.

I had no idea what to expect as to final decision. Simply a crapshoot. We had paid $100 to file the claim and another $75 to proceed to adjudication as punishment for our obdurate refusal to accept a piss-poor mediated settlement. In the end, we got all that we asked for, plus "costs" of the $175 paid out and a bit for prejudgment interest. I probably devoted 10 hours to the file. Had I charged legal fees, the bill would have been about $4,000. Sags is right. The defendant should have been ordered to pay me that. Plus punitive, aggravated and exemplary damages!

If I am ever in Provincial Court again (I hope I am not asked), when the bench asks what relief I am seeking for my client, I shall not be reticent to say: "We want justice, with costs."
 

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My realtor asked me to put his name as a witness. So, he will be presenting at the court.

Thanks for the link, I will check it out.
That's good, but you really need to get the seller's realtor to court to prove the seller was aware of the context of the negotiations.
 

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I just can't imagine getting this worked up over a house purchase that fell through for whatever reasons. I 'get' it is now not a question of money but the 'principle' and wanting to see 'justice' being done. But at the same time, my time and energy would be worth more to me than doing so in this case. It isn't like looking for justice over a major crime of some kind.

I recall many decades ago, I was driving across Toronto on the 401 Highway and SOME DAMN INCONSIDERATE ******* CUT ME OFF. I was yelling at him through the windshield of my car and venting profusely.

My Brother who was sitting beside me said, 'you know, right now you are the one starting down the road to an ulcer and that guy is just driving along as happy as could be and feeling fine with himself and his world. You could take his license number (nowadays I guess you would have it all captured on dashcam), hire a lawyer, take it to court for something and continue down the road towards an ulcer OR you could learn when to let some things go and avoid the ulcer. Your choice.'

To me scorpion_ca, your on the road to an ulcer over something that really isn't worth the 'principle of it'.
 

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Family lawyer says to a guy trying to get all his stuff from ex...You can pay me a $5000 retainer to get back your furniture damaged or missing, or you can pay $5000 for new furniture.

Just saying.....proving a point can be expensive, unless you like a challenge and represent yourself in small claims court. Then, maybe if the satisfaction/settlement is worth the time.
 

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Discussion Starter #68
I just can't imagine getting this worked up over a house purchase that fell through for whatever reasons. I 'get' it is now not a question of money but the 'principle' and wanting to see 'justice' being done. But at the same time, my time and energy would be worth more to me than doing so in this case. It isn't like looking for justice over a major crime of some kind.

I recall many decades ago, I was driving across Toronto on the 401 Highway and SOME DAMN INCONSIDERATE ******* CUT ME OFF. I was yelling at him through the windshield of my car and venting profusely.

My Brother who was sitting beside me said, 'you know, right now you are the one starting down the road to an ulcer and that guy is just driving along as happy as could be and feeling fine with himself and his world. You could take his license number (nowadays I guess you would have it all captured on dashcam), hire a lawyer, take it to court for something and continue down the road towards an ulcer OR you could learn when to let some things go and avoid the ulcer. Your choice.'

To me scorpion_ca, your on the road to an ulcer over something that really isn't worth the 'principle of it'.
Thanks for your suggestion but this is the problem of general public...always try to ignore and move on when someone screws you. I spent a lot of time to get my mortgage approval and spent around $400 for inspection and now it's my fault to take them to the court for justice. It not going to happen with me.
 

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Discussion Starter #69
Family lawyer says to a guy trying to get all his stuff from ex...You can pay me a $5000 retainer to get back your furniture damaged or missing, or you can pay $5000 for new furniture.

Just saying.....proving a point can be expensive, unless you like a challenge and represent yourself in small claims court. Then, maybe if the satisfaction/settlement is worth the time.
I got a ticket failure to obey peace officer in 2009. The ticket was $172 without any demerits point. I went to see the crown prosecutor and he offered me $56 fine. He told me that he doesn't have any authority to cancel the ticket. Then I went to the court and the police officer told me that if he wins he would add 3 demerit points on my record. I won the case after the trail and the satisfaction/feelings I get till to date is amazing. Money can't buy that feelings....
 

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Good luck on your quest then.

There are lots of videos on Youtube on navigating your way through Small Claims Court.
 

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Yes, we are communicating with the realtor of seller by email and text messages and we have kept it as evidence. How much compensation should we be seeking? We were really excited as a first time home buyer. Now very upset...
You can claim the actual costs associated with the sale agreement, which means you need a proof. Canadian courts normally don't award mental and emotional distress unless accompanied with a medical bill. With regards to the amendment, if the seller never signed one, then buyer would have normally sent a mutual release if she wants to get out of the deal. If not, the buyer has to accept what is written in the agreement of purchase and sale.
 

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Discussion Starter #72
You can claim the actual costs associated with the sale agreement, which means you need a proof. Canadian courts normally don't award mental and emotional distress unless accompanied with a medical bill. With regards to the amendment, if the seller never signed one, then buyer would have normally sent a mutual release if she wants to get out of the deal. If not, the buyer has to accept what is written in the agreement of purchase and sale.
What do you mean by the actual costs associated with the sale agreement? The price was $340k in the agreement and we deposited 10k. However, they have returned the deposit. Does Canadian court award anything for making an example?

What was the responsibility of the realtor of seller in this matter? Although the realtor followed the lawful instructions, I think it is the realtor's responsibility to educate the client about the contract law.

Although our realtor sent them the amendment before the deadline, the seller didn't sign it as they refused to provide compensation for defectives even though they offered the compensations. Our amendment indicated that we removed the financing and inspection conditions and the seller would provide or reduce $2k compensation for defectives. Our realtor never sent any mutual release ....not sure if it is required in AB. As a buyer, we accepted what they offered us for compensation for defectives and removed the conditions. The seller changed her mind as she received a better deal.
 

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What do you mean by the actual costs associated with the sale agreement? The price was $340k in the agreement and we deposited 10k. However, they have returned the deposit. Does Canadian court award anything for making an example?
I'll be interested too in money_talks' reply. Money talks talks in very sure terms, so I'll trust that money_talks is a lawyer.
 

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What do you mean by the actual costs associated with the sale agreement? The price was $340k in the agreement and we deposited 10k. However, they have returned the deposit. Does Canadian court award anything for making an example?

What was the responsibility of the realtor of seller in this matter? Although the realtor followed the lawful instructions, I think it is the realtor's responsibility to educate the client about the contract law.

Although our realtor sent them the amendment before the deadline, the seller didn't sign it as they refused to provide compensation for defectives even though they offered the compensations. Our amendment indicated that we removed the financing and inspection conditions and the seller would provide or reduce $2k compensation for defectives. Our realtor never sent any mutual release ....not sure if it is required in AB. As a buyer, we accepted what they offered us for compensation for defectives and removed the conditions. The seller changed her mind as she received a better deal.
Sorry about the late reply.

First, for the deposit, if you accepted the return, which implies that you accepted the seller's position of not agreeing to amendment. But the agreement of purchase and sale is still valid unless ou sent them a mutual release. I am not sure about the practice in AB.

With regards to realtors' obligation, they go by the instruction of their clients. In your case, your realtor should go by your instruction.

Finally, the seller did not accept the removal of the condition in exchange of the compensation, which means that there is no agreement because it did not fulfill the condition.
 

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Discussion Starter #76
Sorry about the late reply.

First, for the deposit, if you accepted the return, which implies that you accepted the seller's position of not agreeing to amendment. But the agreement of purchase and sale is still valid unless ou sent them a mutual release. I am not sure about the practice in AB.

With regards to realtors' obligation, they go by the instruction of their clients. In your case, your realtor should go by your instruction.

Finally, the seller did not accept the removal of the condition in exchange of the compensation, which means that there is no agreement because it did not fulfill the condition.
So, that means I don't have any chance for damages at the court. Wasted money for inspection and time to get mortgage approval for nothing?

We never sent them any mutual release. My understanding is that we "The buyer" remove the condition. I am still gathering info about the contract law in AB. When someone offers something and the other party accepts it, then it's a legally binding contract. I could be wrong. The seller offered us compensation for defectives in writing by email and we accepted it and subsequently remove the condition. After that, the seller changed her mind as she received a better offer. The house is still active and let's see how much they get for it.
 

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So, that means I don't have any chance for damages at the court. Wasted money for inspection and time to get mortgage approval for nothing?

We never sent them any mutual release. My understanding is that we "The buyer" remove the condition. I am still gathering info about the contract law in AB. When someone offers something and the other party accepts it, then it's a legally binding contract. I could be wrong. The seller offered us compensation for defectives in writing by email and we accepted it and subsequently remove the condition. After that, the seller changed her mind as she received a better offer. The house is still active and let's see how much they get for it.
The contract is not binding until conditions to it is fulfilled. In your case, the condition of financing and home inspection should have been removed. Removing conditions can be done in two ways: an amendment to the agreement or a waiver. Waiver means that the buyer relinquish the right to get out of the deal, which does not require the agreement of the seller whereas the amendment requires the agreement of the seller. Normally these two have no big difference but in your case, the seller wanted to get out of the deal and the buyer wanted to bind the seller, therefore, the waiver would have worked better for you. To my understanding, you don't have a binding agreement. I hope that you could save at least the home inspection fee. But the seller will probably say that you did not give a waiver. Real carefully the wordings of the condition.
 

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Just got the notification that the house is sold for $348k.
There goes a happy buyer and a happy seller with no thoughts whatsoever in their mind as to your continuing unhappiness and how you intend to compound that unhappiness rather than letting it go and getting on with your life.

Here we are in a pandemic and you want to waste your time crying over spilt milk.
 

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Discussion Starter #80
The contract is not binding until conditions to it is fulfilled. In your case, the condition of financing and home inspection should have been removed. Removing conditions can be done in two ways: an amendment to the agreement or a waiver. Waiver means that the buyer relinquish the right to get out of the deal, which does not require the agreement of the seller whereas the amendment requires the agreement of the seller. Normally these two have no big difference but in your case, the seller wanted to get out of the deal and the buyer wanted to bind the seller, therefore, the waiver would have worked better for you. To my understanding, you don't have a binding agreement. I hope that you could save at least the home inspection fee. But the seller will probably say that you did not give a waiver. Real carefully the wordings of the condition.
Would you mind to review the attached contract specially 8, 12 & 13 points and amendment? Thanks.
 

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