Alevizos v. Manitoba Chiropractors Association et al., (2010) 250 Man.R.(2d) 297 (QB)

• Judge: McKelvey, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: March 26, 2010
• Jurisdiction: Manitoba
• Citations: (2010), 250 Man.R.(2d) 297 (QB);2010 MBQB 67

Alevizos v. Chiropractors Assoc. (2010), 250 Man.R.(2d) 297 (QB)

MLB headnote and full text

Temp. Cite: [2010] Man.R.(2d) TBEd. AP.007

Dr. John Alevizos (plaintiff) v. Manitoba Chiropractors Association, Dr. Gerald Tole, Dr. Robert Palaschuk, Dr. Martin Gurvey, Dr. Howard Leslie and Lawrence Heise (defendants)

(CI 04-01-38300; 2010 MBQB 67)

Indexed As: Alevizos v. Manitoba Chiropractors Association et al.

Manitoba Court of Queen's Bench

Winnipeg Centre

McKelvey, J.

March 26, 2010.

Summary:

Alevizos, a chiropractor, commenced a civil action against the Manitoba Chiropractors Association and three other chiropractors (Tole, Gurvey and Palaschuk) who were officers and members of the Association. Alevizos claimed general, special and punitive damages for malicious prosecution, negligence (Tole only), misfeasance in public office and civil conspiracy (Gurvey and Palaschuk only).

The Manitoba Court of Queen's Bench, in a decision reported at (2009), 239 Man.R.(2d) 207; 2009 MBQB 116, dismissed the claims and awarded costs in favour of the defendants. The parties were unable to agree on the amount of costs payable and sought a resolution of that issue from the court. The principal issues included the appropriateness of awarding solicitor-client costs (agreed at $474,616.81), the ramifications of offers to settle, and whether Alevizos' personal financial situation ought to be considered.

The Manitoba Court of Queen's Bench held that the matter did not warrant the imposition of a cost award on a solicitor-client basis, because this was not the rare and exceptional case where the plaintiff's conduct was "reprehensible, scandalous or outrageous". The court awarded Tariff "A" costs of $102,800, and Tariff "B" costs of $65,837.49. The court declined to consider the offers to settle. Costs awarded were not reduced because of Alevizos' alleged impecuniosity.

Practice - Topic 6934

Costs - General principles - Where litigant impecunious (financial hardship) - The plaintiff, a chiropractor, commenced a civil action against the Manitoba Chiropractors Association and three other chiropractors - The action was dismissed - The parties sought a resolution of the amount of costs payable - The plaintiff had sworn an affidavit indicating that he could only pay a modest sum in costs if he was to avoid bankruptcy - The defendants sought to expunge the affidavit on the basis that it was irrelevant as impecuniosity was not a consideration that had ever been adopted in Manitoba - The Manitoba Court of Queen's Bench held that a reduction of the costs award was not appropriate - It could be argued that impecuniosity was a factor which it had the judicial discretion to consider under rule 57.01(1)(h), namely "any other matter relevant to the question of costs" - That being said, the plaintiff knowingly commenced the "complex" litigation - "Without question, the successful party in such circumstances generally receives an award of costs commensurate with the Tariffs" - Further, the plaintiff had asserted during the proceedings that he was one of the most successful chiropractors in the province - See paragraphs 48 to 53.

Practice - Topic 7242.1

Costs - Party and party costs - Offers to settle - Grounds for denying double costs - [See Practice - Topic 7243 ].

Practice - Topic 7243

Costs - Party and party costs - Offers to settle - Effect of failure to accept - The defendants made an offer to settle on October 1, 2007, for $30,000 - A second offer to settle, dated April 21, 2008, proposed $90,000, and included the need for a joint statement with respect to the resolution of the dispute - The offers remained open for acceptance until the plaintiff closed his case at trial - The plaintiff's claims were dismissed as he could not prove, on a balance of probabilities, the allegations made - The defendants submitted that the court should order party and party costs to the date of service of the 2007 offer and double costs for services rendered thereafter - The Manitoba Court of Queen's Bench declined to consider the offers to settle and held that the defendants were entitled to an award only representative of party/party costs - The second offer to settle superseded the first as it was "much more favourable in terms of the amount offered" - Further, rule 49.04(1) contemplated the ability to withdraw an offer before acceptance - The first offer was effectively withdrawn on April 21, 2008, by virtue of the second offer - The second offer, which contained the proposed joint statement, was difficult to evaluate in terms of a comparison with the trial result - More importantly, rule 49.10(2) did not stipulate the requirement to award double costs unless "the court orders otherwise" - Also, the defendants were not compliant early in the discovery process - An award of "double costs" was not in accordance with the tenor of rule 49.10(2) - See paragraphs 35 to 47.

Practice - Topic 7245.3

Costs - Party and party costs - Offers to settle - Where more than one offer to settle - [See Practice - Topic 7243 ].

Practice - Topic 7247.1

Costs - Party and party costs - Offers to settle - Costs to successful defendant - [See Practice - Topic 7243 ].

Practice - Topic 7401

Costs - Solicitor and client costs - General principles - General - The successful defendants in this tort action argued that this was an appropriate case to award solicitor-client costs, which, the parties agreed, totaled $474,616.91 - The plaintiff argued that costs should be allowed on a party/party basis only - The Manitoba Court of Queen's Bench stated that the cases cited "clearly address that solicitor-client costs are awarded only in exceptional circumstances and are reserved for those cases where there is proof of 'reprehensible, scandalous or outrageous' conduct on the part of one of the parties involved in the litigation" - In the result, the court imposed a cost award on a party/party basis - See paragraphs 6 to 9.

Practice - Topic 7458

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Rare, exceptional or complex cases - The plaintiff commenced a tort action against four defendants - All claims were dismissed - The defendants submitted that this was the rare and exceptional case where the plaintiff's conduct was "reprehensible, scandalous or outrageous" and also that the conduct of the litigation was not undertaken in a reasonable manner - The Manitoba Court of Queen's Bench, in the exercise of its discretion, reviewed the factors under rule 57.01(1) and concluded that the matter did not warrant the imposition of a cost award on a solicitor-client basis - Dismissal of all claims did not in and of itself facilitate the need to order solicitor-client costs - There were "faults" on both sides of the litigation - More importantly, the plaintiff's conduct did not attract solicitor-client costs - "There was sufficient evidence to bring the matter before the court, albeit insufficient evidence to successfully sustain the action" - The amount claimed demonstrated an important issue to be considered - In the result, the court imposed a cost award on a party/party basis - See paragraphs 24 to 29.

Cases Noticed:

Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161, appld. [para. 7].

Manitoba Keewatinowi Okimakanak Inc. v. McIvor (2007), 220 Man.R.(2d) 240; 407 W.A.C. 240; 2007 MBCA 134, refd to. [para. 8].

Agritrans Logistics Ltd. (Bankrupt), Re (2005), 195 Man.R.(2d) 47; 351 W.A.C. 47; 2005 MBCA 68, refd to. [para. 8].

Wolfrom v. Association of Professional Engineers and Geoscientists (Man.) (2001), 160 Man.R.(2d) 62; 262 W.A.C. 62; 2001 MBCA 152, refd to. [para. 9].

Giesbrecht v. McNeilly et al. (2008), 225 Man.R.(2d) 223; 419 W.A.C. 223; 2008 MBCA 22, refd to. [para. 9].

Hamilton v. Open Window Bakery Ltd. et al., [2004] 1 S.C.R. 303; 316 N.R. 265; 184 O.A.C. 209; 2004 SCC 9, refd to. [para. 9].

Cerasani v. Kupfer et al. (2009), 243 Man.R.(2d) 209; 2009 MBQB 202, refd to. [para. 9].

Weber v. Yee et al. (2001), 158 Man.R.(2d) 268; 2001 MBQB 170, refd to. [para. 9].

McMurachy et al. v. Red River Valley Mutual Insurance Co. (1994), 92 Man.R.(2d) 225; 61 W.A.C. 225 (C.A.), refd to. [para. 17].

Morton et al. v. Asper et al. (1991), 72 Man.R.(2d) 184 (Q.B.), refd to. [para. 17].

Johnson v. BFI Canada Inc. et al. (2002), 169 Man.R.(2d) 308; 2002 MBQB 326, consd. [para. 19].

Diefenbacher v. Young et al. (1995), 80 O.A.C. 216; 22 O.R.(3d) 641; 123 D.L.R.(4th) 641 (C.A.), refd to. [para. 38].

Bains v. Indo-Canadian Times Inc. (1995), 57 B.C.A.C. 90; 94 W.A.C. 90 (C.A.), refd to. [para. 38].

Knysh v. Knysh Estate et al. (1994), 94 Man.R.(2d) 274 (Q.B.), refd to. [para. 39].

Duncan et al. v. Baddeley et al. (1995), 166 A.R. 15 (Q.B.), refd to. [para. 45].

Voesenek et al. v. Runne et al., [2001] Man.R.(2d) Uned. 113; 2001 MBQB 259, refd to. [para. 46].

Jeremiah v. Toronto Police Services Board et al. (2009), 255 O.A.C. 198; 2009 ONCA 671, refd to. [para. 50].

Statutes Noticed:

Court of Queen's Bench Act, S.M. 1988-89, c. 4; C.C.S.M., c. C-280, sect. 96(1) [para. 2].

Queen's Bench Rules (Man.) - see Rules of Court (Man.), Queen's Bench Rules.

Rules of Court (Man.), Queen's Bench Rules, rule 49.04(1) [para. 42]; rule 49.10(2) [paras. 35, 44]; rule 57.01(1) [paras. 3, 29].

Counsel:

Stephen J. Moreau, for the plaintiff;

Martin G. Tadman and Nunziata Ardita, for the defendants.

This costs matter was heard by McKelvey, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on March 26, 2010.