Chapell v. Canadian Pacific Railway Co., 2011 ABQB 74

• Judge: Erb, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 13, 2010
• Citations: 2011 ABQB 74;(2011), 504 A.R. 361 (QB)

Chapell v. CPR (2011), 504 A.R. 361 (QB)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. FE.092

Paul C. Chapell (plaintiff) v. Canadian Pacific Railway Company (defendant)

(0001 14882; 2011 ABQB 74)

Indexed As: Chapell v. Canadian Pacific Railway Co.

Alberta Court of Queen's Bench

Judicial District of Calgary

Erb, J.

February 10, 2011.

Summary:

The plaintiff employee sued the defendant employer for wrongful dismissal.

The Alberta Court of Queen's Bench, in a decision reported at [2010] A.R. Uned. 531, allowed the action and assessed damages. The parties sought directions on costs.

The Alberta Court of Queen's Bench determined the costs issues.

Interest - Topic 5525

Interest as damages (prejudgment interest) - Bars - Delay - The plaintiff employee successfully sued the defendant employer for wrongful dismissal - The plaintiff sought pre-judgment interest for the entire period of the litigation - The defendant asked the court to review the interest claim and adjust it to take into account the three-year period during which the plaintiff took no steps to advance the litigation - The file was dormant between April 8, 2004 (the date the defendant provided responses to undertakings) and April 26, 2007 (the date the plaintiff's correspondence recommenced) - The Alberta Court of Queen's Bench held that the plaintiff would be entitled to pre-judgment interest except for the dormant period - The plaintiff offered no explanation or justification for the dormant years alleged by the defendant - Nor was it denied - It was always a concern for the courts when litigation languished for years before being brought to trial - Courts should place value on encouraging promptness and penalizing delay - See paragraphs 35 to 41.

Practice - Topic 7029.3

Costs - Party and party costs - Entitlement to - Successful party - Exceptions - Delay or prolonging proceedings - The plaintiff employee successfully sued the defendant employer for wrongful dismissal - The defendant asked the court to order lower costs than ordinarily due under Schedule C because of "considerable inefficiency and delay" which it said arose from the plaintiff's disorganized presentation of his case - The Alberta Court of Queen's Bench ordered that the number of trial days for costs purposes would be decreased from 12.5 days to 11 days - There was a discernable lack of organization and requests for frequent breaks - The delays could have been avoided and the trial could and should have concluded within the scheduled time - See paragraphs 17 to 21.

Practice - Topic 7063

Costs - Party and party costs - Counsel fees - Special or additional counsel - The plaintiff employee successfully sued the defendant employer for wrongful dismissal - The plaintiff sought second counsel fees - The plaintiff's claim required the consideration of issues surrounding whether the plaintiff was dismissed for cause, the appropriate award for damages in lieu of reasonable notice of termination and the appropriateness of an award for bad faith damages - The trial was heard over 12.5 days - While the plaintiff's second counsel did not address the court, the trial was somewhat document-intensive and the plaintiff's second counsel appeared to be involved in the document organization, during the time she was in the court room - The issues were resolved in a 110-paragraph judgment - The Alberta Court of Queen's Bench held that "[i]n consideration of all of the points raised by both Counsel and the authorities cited, I find that limited second counsel fees should be awarded. I find that the amount claimed, $11,100.00 is unreasonably high. Although I recognize that second counsel need not attend every trial day, I find that the Defendant's submission to limit the number of days for which second counsel fees should apply to be appealing because it results in a more reasonable conclusion overall and because even with second counsel assistance, the presentation of the case was less than organized and trial efficiency was lacking. I award second counsel fees for 8 of the 12.5 trial days." - See paragraphs 27 to 34.

Practice - Topic 7113

Costs - Party and party costs - Special orders - Increase in scale of costs - For unproved allegations of fraud - The plaintiff employee successfully sued the defendant employer for wrongful dismissal - The plaintiff claimed Schedule C costs on an enhanced basis on the basis of the defendant's unsubstantiated fraud allegation - The Alberta Court of Queen's Bench denied the claim - The allegations of fraud were the central issue in the litigation - However, although the plaintiff did not intend to commit fraud and the defendant treated him unfairly during its investigation, the allegations were not designed to intimidate him or for the purpose of enhancing the seriousness of the allegations - Further, the defendant did not behave improperly in the conduct of the litigation - Accordingly, increased costs above Column 3 were not appropriate - See paragraphs 14 to 16.

Practice - Topic 7246

Costs - Party and party costs - Offers to settle - Where judgment equal to or more favourable than offer - The plaintiff employee successfully sued the defendant employer for wrongful dismissal - The plaintiff had made an offer of settlement to the defendant in the amount of $315,000 - The plaintiff claimed double costs where the judgment was more favourable than the settlement offer - The defendant submitted that the entirety of the judgment was included within the definition of a retiring allowance pursuant to the Income Tax Act and as a result the totality of the tax to be deducted was 30% pursuant to s. 103(4), 103(6) and ss. 2, 4 and 5 of the Personal Income Tax Withholding Regulation - The defendant submitted that the amount of the judgment was really $287,681.75 - The defendant further argued that the plaintiff's offer to settle of $315,000 made no specifications with respect to taxes which meant that the judgment did not exceed the formal offer - The Alberta Court of Queen's Bench held that the plaintiff successfully recovered an amount that was more favourable than the offer to settle and was entitled to double costs for all steps taken in relation to the action after the offer was served - While the court's judgment acknowledged the plaintiff's tax obligations, it was not intended that the judgment would take into account a tax calculation - Any taxation implications were addressed in the damages section of the judgment - Further, it was not for the court to determine income tax deductions - There were tax implications that might be unknown to the court possibly involving complicated calculations - See paragraphs 22 to 26.

Practice - Topic 7470

Costs - Solicitor and client costs - Entitlement to - Unproved allegation of fraud - The plaintiff employee successfully sued the defendant employer for wrongful dismissal - The plaintiff claimed full indemnity for solicitor and client costs on the basis of the defendant's unsubstantiated fraud allegation - The Alberta Court of Queen's Bench denied solicitor and client costs - The defendant's conduct during the litigation did not justify an award of solicitor and client costs - It was not reprehensible, scandalous or outrageous - Further, although the defendant had a case-building objective in its investigation of the claim against the plaintiff, there was no evidence to conclude that the defendant raised the allegations to intimidate the plaintiff or increase the seriousness of the allegations - The defendant's poor conduct in the manner in which the plaintiff was dismissed had already been adequately addressed in the award of bad faith damages - Allowing solicitor and client costs as well would amount to double relief - The defendant's conduct in the period leading up to the plaintiff's dismissal spoke not to the manner in which the defendant conducted itself during the litigation, but rather to the conduct that gave rise to it - Accordingly, solicitor and client costs were not appropriate in this case - See paragraphs 6 to 13.

Cases Noticed:

Broers v. Real Estate Council of Alberta et al. (2010), 498 A.R. 190; 2010 ABQB 774, refd to. [para. 4].

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, refd to. [para. 7].

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. 7].

Recovery Production Equipment Ltd. v. McKinney Machine Co. (1998), 223 A.R. 24; 183 W.A.C. 24; 1998 ABCA 239, refd to. [para. 8].

College of Physicians and Surgeons (Alta.) v. J.H. et al. (2009), 468 A.R. 101; 2009 ABQB 48, refd to. [para. 8].

Davis v. 850015 Alberta Ltd. et al. (2003), 335 A.R. 172; 2003 ABPC 68, refd to. [para. 8].

Jackson and Parkview Holdings Ltd. v. Trimac Industries Ltd. et al. (1993), 138 A.R. 161; 8 Alta. L.R.(3d) 403 (Q.B.), affd. (1994), 155 A.R. 42; 73 W.A.C. 42 (C.A.), refd to. [para. 10].

Conway et al. v. Zinkhofer, [2007] A.R. Uned. 419; 2007 ABQB 2, affd. [2008] A.R. Uned. 306; 2008 ABCA 392, refd to. [para. 15].

Craig v. Toronto (City) et al., [2008] O.T.C. Uned. 866 (Sup. Ct.), refd to. [para. 19].

Alberta Productions Corp. v. Canada Lands Co. CLC Ltd. (2004), 346 A.R. 180; 320 W.A.C. 180; 2004 ABCA 25, refd to. [para. 27].

Kassam v. Dragish (1991), 123 A.R. 161 (Q.B.), refd to. [para. 29].

Davidson v. Patten et al. (2005), 381 A.R. 6; 2005 ABQB 521, affd. (2008), 425 A.R. 186; 418 W.A.C. 186; 2008 ABCA 65, refd to. [para. 29].

Viridian Inc. v. Dresser Canada Inc. et al., [1998] A.R. Uned. 578; 1998 ABCA 275, refd to. [para. 31].

216927 Alberta Ltd. v. Fox Creek (Town) (1990), 104 A.R. 321 (C.A.), refd to. [para. 37].

Rayani v. Yule & Co. (1996), 178 A.R. 231; 110 W.A.C. 231 (C.A.), refd to. [para. 37].

Begro Construction Ltd. v. St. Mary River Irrigation District et al. (1994), 154 A.R. 1 (Q.B.), refd to. [para. 38].

Patterson v. Hryciuk et al., [2005] A.R. Uned. 122; 45 Alta. L.R.(4th) 240; 2005 ABQB 136, refd to. [para. 38].

Statutes Noticed:

Judgment Interest Act, R.S.A. 2000, c. J-1, sect. 2(1), sect. 2(3) [para. 36].

Counsel:

Robert J. Sawers, for the plaintiff;

Robert A. Rakochey, for the defendant.

This case was heard on October 13, 2010, and January 12, 2011, before Erb, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following memorandum of decision on February 10, 2011.