An update on the case of Patricia Thomson, the senior citizen whose Calgary condominium was targeted for seizure under government legislation designed to target properties connected to crime.
A Queen’s Bench justice ruled earlier this year there was no evidence Thomson’s $300,000 condo was used by her son and other suspects implicated in a fraud scheme. The judge quashed the civil restraining order against the condo, and Thomson got to keep it. But at what cost? About $70,000 in legal fees, it turns out.
The province turned to the civil courts when it conceived the Victims Restitution and Compensation Payment Act because the burden of proof is lower than the test in criminal court, where a case must be proven beyond a reasonable doubt. But in embracing the civil process, the government turned its back on another cornerstone of the civil process: that a successful litigant can sue the loser for legal costs.
In Thomson’s case, the judge ruled because the government acted outside the authority of the legislation, it didn’t apply, and allowed her to claim costs. The ruling applied only to Thomson’s case, but the government took notice just a month later and announced it would amend the act to allow respondents whose properties are wrongly targeted to recover their costs.
And so, lawyers for both sides were in court this week arguing their case. Part of Thomson’s defence included a Charter challenge on the constitutionality of the law. Although the judge didn’t rule on the constitutional question, Thomson’s lawyers, Karen Molle and Michael Bates, said it was a necessary part of her defence. Although the Crown hasn’t assigned a dollar figure to what’s it’s willing to pay, Alberta Justice lawyer Cynthia Hykaway argued the cost of the mooted Charter challenge shouldn’t be included in any award.
It only got brief mention in the published article, so it’s worth mentioning here that Thomson’s mortgage holder, the Toronto Dominion bank, is also seeking costs from the Crown. The legislation compelled the bank to file affidavits and documents to prove it wasn’t somehow complicit in the alleged criminal activity or risk losing its investment in Thomson’s property. The bank’s legal costs were around $7,400 — a sum Thomson will be bound by the terms of her mortgage to pay, if the court doesn’t award the bank its costs.