Chisholm v. Lindsay, 2013 ABQB 589

• Judge: Kenny, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: July 16, 2013
• Citations: 2013 ABQB 589;(2013), 571 A.R. 260 (QB)

Chisholm v. Lindsay (2013), 571 A.R. 260 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. OC.071

Catherine Chisholm (plaintiff) v. Noreen Lindsay (defendant)

(0701 04015; 2013 ABQB 589)

Indexed As: Chisholm v. Lindsay

Alberta Court of Queen's Bench

Judicial District of Calgary

Kenny, J.

October 4, 2013.

Summary:

The plaintiff obtained judgment against the defendant for $347,000 (See [2012] A.R. Uned. 94). The defendant had made two settlement offers ($350,000 and $360,000). The first offer was invalid under the Rules (not served 10 days before trial). The second offer (three days before trial) was made "without prejudice" and did not state an intention to use the offer with respect to the issue of costs if not accepted. Accordingly, the second offer was not a valid Calderbank offer. The plaintiff argued that the court could not consider either offer in determining costs.

The Alberta Court of Queen's Bench, in a judgment reported (2013), 560 A.R. 97, held that the court had a discretion to consider informal settlement offers (invalid offers under the Rules and non-Calderbank offers) in determining costs. At issue was a number of claimed items respecting the plaintiff's Bill of Costs and the defendant's claim to contribution to trial costs resulting from her offers to settle.

The Alberta Court of Queen's Bench awarded the plaintiff costs. The defendant was denied costs based on her offers to settle. The court determined the allowable amounts under the plaintiff's Bill of Costs.

Practice - Topic 5269.5

Trials - General - Judicial or alternate dispute resolution - Costs - The plaintiff sought compensation for attending the Judicial Dispute Resolution in this matter even though it was not provided for in Schedule C - She argued that it was an important and time- consuming step in the litigation and could be compensated for under rule 1.7(2) which allowed the rules to be used by analogy for any matter not dealt with in the rules - The defendant argued that rule 10.31(2) specifically provided that reasonable and proper costs did not include costs related to a dispute mediation process, and therefore costs could not properly be awarded for this step - The Alberta Court of Queen's Bench stated that "I agree. Costs are not provided for the ADR/JDR process. There will be no costs for this step." - See paragraphs 20 to 21.

Practice - Topic 7066

Costs - Party and party costs - Counsel fees - Written argument - The plaintiff sought $18,000 ($3,000 times six) for final oral argument, preparation of a number of written arguments, and responses on post-trial issues - Although the argument was oral, the defendant acknowledged a fee for argument of $3,000 given the preparation required by both parties for oral argument - The other applications dealt with matters of cost of future care deductions, loss of earning capacity, stay of execution and an application to strike an affidavit - Two of the applications, involving three briefs filed by the plaintiff, were resolved in favour of the defendant - The Alberta Court of Queen's Bench stated that "I will award costs under Item 8(1) of Schedule C with respect to an application requiring written briefs for two applications for a total of $3,000 plus the $3,000 for the oral argument above for a total of $6,000." - See paragraphs 25 to 26.

Practice - Topic 7082

Costs - Party and party costs - Preparation for trial - [See Practice - Topic 7115 ].

Practice - Topic 7090

Costs - Party and party costs - Witness fees and costs of preparation for trial or appeal - Drafting of pleadings and other documents (Supplemental Affidavit of Records) - The plaintiff filed an Affidavit of Records and then two subsequent Affidavits of Records - The defendant objected to paying for the second two Affidavits, arguing that Schedule C costs operated on a block tariff system, entitling the plaintiff to only one fee for disclosure of all records, including Affidavits of Records - The plaintiff argued that to allow a fee every time an Affidavit of Records was produced would allow the plaintiff to file a number of Affidavits of Records and seek a fee for each one, which was not the intention of that item in Schedule C - The plaintiff argued that there was a continuing obligation to provide records mandated in rule 5.10, requiring that the plaintiff file a new Affidavit of Records when new documents arose - The Alberta Court of Queen's Bench noted that although the supplemental Affidavits of Records were sworn on different dates, they were both filed on the same date and could have been combined into one additional Affidavit of Records - The court stated that "I have reviewed the supplemental Affidavits of Records and they appear substantive. While I agree with the Defendants that the fee is a block fee for all disclosure, there is discretion to vary the fees to recognize additional work. I am prepared to allow an additional fee of $400 for each of the supplemental Affidavits of Records." - See paragraphs 3 to 5.

Practice - Topic 7090

Costs - Party and party costs - Witness fees and costs of preparation for trial or appeal - Drafting of pleadings and other documents (Notice of Witnesses) - The plaintiff served a notice of witnesses they did not intend to or "may not" call for trial - The defendant served both a response and an amended response to the notice - The plaintiff sought costs for the notice and for review of each of the responses - The Alberta Court of Queen's Bench stated that "I agree with the Defendant that the notice is not very useful, firstly, for having listed over 52 witnesses, including any and all emergency personnel not yet identified, without it appearing that the Plaintiff considered whether the failure to call each of those witnesses would have resulted in an adverse inference, and secondly, for having used the terminology 'may not' call, which does not tell the Defendant whether the Plaintiff intends to call the witnesses or not. Having said that, the Defendant did not raise that issue in their replies but rather provided substantive replies listing those witnesses that did not need to be called and those that did need to be called in relation to the issue of adverse inference. I would allow the Plaintiff the cost for the notice. There is no provision in Schedule C for review of a notice to admit, and therefore the claim for costs to review both of the replies is denied." - See paragraphs 7 to 9.

Practice - Topic 7090

Costs - Party and party costs - Witness fees and costs of preparation for trial or appeal - Drafting of pleadings and other documents (Notice to Admit Documents) - The plaintiff served two Notices to Admit Documents: "A" (for the truth of their contents) and "B" (true copies of the original without admitting the truth or accuracy thereof) - The plaintiff sought compensation for each notice - The defendant argued that there was no need for two notices and, in any event, the second notice was of no use to the trial process at all, as it related almost entirely to the plaintiff's own treatment providers and such records were prima facie proof of the facts therein - The plaintiff's refusal to acknowledge the accuracy of the notes and records of her own treatment providers necessitated that they be called as witnesses to prove the records they made, which unduly lengthened the trial - The notice served exactly the opposite purpose for which it was intended, which was to admit documents for the purpose of expediting the trial - The plaintiff argued that the defendant still required certain witnesses to be called and refused to admit certain documents for the truth of their contents, so that did not help to expedite the trial process - The Alberta Court of Queen's Bench held that "I will not allow costs for notice to admit "B" as it was really of no use whatsoever. The documents were already in the affidavits of records and, without admitting them for the truth of their contents, nothing more was accomplished." - See paragraphs 10 to 13.

Practice - Topic 7090

Costs - Party and party costs - Witness fees and costs of preparation for trial or appeal - Drafting of pleadings and other documents (Notice to Admit Opinion Evidence) - The plaintiff served the defendant with 13 different Notices to Admit Opinion Evidence - Each was in a different notice which attached the report of the witness and a one line comment calling on the defendant to admit the opinion for the purposes of trial - The plaintiff sought the fee under Schedule C for each Notice - The plaintiff argued that the opinions of some of the plaintiff's experts were accepted by the court at trial and therefore the defendant should have admitted that evidence before the trial to expedite matters - The plaintiff sought a total of $10,400 to prepare the 13 Notices to Admit - The defendant argued that this was excessive given that the rule 218.1 (current rule 5.34) reports had to be served in any event and that each notice was a form which included a two line reference to the specific report - The Alberta Court of Queen's Bench stated that "I agree. Schedule C costs are to be partial recovery to the successful party for costs incurred for each step of the litigation. The sum of $10,400 for what was prepared was far in excess of the time required to prepare the notices. I will award $2,500 for this step." - See paragraphs 14 to 18.

Practice - Topic 7110.4

Costs - Party and party costs - Special orders - Increase in scale of costs - Inflation - The plaintiff sought an inflationary factor of 1.427 on the fees awarded to reflect the fact that Schedule C had not been amended in over a decade - The plaintiff noted three cases before and one case after the Rules of Court were amended in 2010, where an inflationary factor was granted - The defendant pointed out that the Rules, including Schedule C, were amended effective November 1st, 2010 - Some small changes were made to Schedule C, but the amounts were not changed - The current Schedule C came into force on November 1st, 2010 - The defendant argued that had the government intended to revise Schedule C, they would have done so then - The Alberta Court of Queen's Bench stated that "There is no basis on which to consider an inflation factor in these circumstances. It is up to the legislators to determine an appropriate Schedule C and to revise it as required from time to time. It is not up to the courts to undertake that analysis on a case by case basis. The claim for an inflation factor is denied." - See paragraphs 27 to 29.

Practice - Topic 7115

Costs - Party and party costs - Special orders - Increase in scale of costs - Difficulty and complexity of proceedings - Schedule C provided for a fee of $6,000 as preparation for trial - The plaintiff sought a minimum of $25,000 given the length and complexity of the trial - There were 29 experts in total to prepare for, as well as 11 lay witnesses - The defendant accepted the $6,000 fee, but argued that the plaintiff provided no reason why that fee should be increased - In particular, the defendant argued that the conduct of the trial rested with the plaintiff, and in this case the plaintiff served 22 expert notices on the defendant, which was unnecessary for a relatively straightforward case where there was no issue with respect to liability, and no difficult legal issues - The Alberta Court of Queen's Bench stated that "Experts are often more difficult to prepare for than lay witnesses. This was an expert intense trial, although all experts may not have been necessary for the trial proper. I am prepared to augment the costs somewhat given the length of the trial and the number of experts called and would set that figure at double the Schedule C fee: $12,000." - See paragraphs 22 to 24.

Practice - Topic 7118.1

Costs - Party and party costs - Special orders - Multiplier - [See Practice - Topic 7110.4 ].

Practice - Topic 7133

Costs - Party and party costs - Disbursements - Expenses for surveyors, photographers, accountants, etc. - The successful plaintiff in a motor vehicle negligence action sought disbursements of $17,000 for an illustrator for medical illustrations and the illustrator's trial testimony - The report and two of the five illustrations were not admitted in evidence - The plaintiff argued that the illustrations were helpful and the testimony was necessary because the defendant would not admit the illustrations into evidence - The defendant argued that the illustrations were unnecessary (could have come from textbooks) - The Alberta Court of Queen's Bench held that the illustrations could be helpful in certain circumstances, such as where a medical expert directed that the illustrations be made - No expert requested illustrations - The cost was out of proportion to the issues at trial - The court stated that "Thought should be given, in advance, as to what ultimately the purpose of the illustration is which cannot be readily obtained from other reliable sources. I will reduce the amount that may be recovered with reference to the material actually used at the trial. I set the recoverable disbursement under this heading at $6,000" - See paragraphs 34 to 37.

Practice - Topic 7134

Costs - Party and party costs - Disbursements - Photocopies, scanning or printing - The successful plaintiff in a motor vehicle negligence action claimed $21,896.10 in disbursements for in-house photocopying - The defendant argued that photocopying constituted overhead and was not recoverable as a disbursement - Alternatively, the amount claimed was excessive - The plaintiff sought $.28 per page - Several cases set either $.10 or $.15 as reasonable - The Alberta Court of Queen's Bench stated that "The amount of photocopying done and the cost per page is excessive for in-house photocopying. The Plaintiff provided an affidavit supporting approximately 28,000 photocopies and even some of those were unnecessary such as providing each expert with 1144 pages of the affidavit of records. I will allow $4,000 for in-house photocopying." - See paragraphs 60 to 62.

Practice - Topic 7141.1

Costs - Party and party costs - Disbursements - Cost of medical nominee attending independent medical examination - The successful plaintiff in a motor vehicle negligence action sought disbursements for the cost of her having a medical nominee attend every independent medical examination - Under rule 5.43(1), the cost of a nominee was to be paid by the party appointing that nominee unless otherwise ordered by the court - The plaintiff argued that the right to have a nominee present was "hollow" without compensation from the defendant - The Alberta Court of Queen's Bench stated that "the Plaintiff must provide evidence that the need for a nominee is reasonable. Here it appears simply as a matter of course. There is no suggestion that any of the Defendant's independent experts were unqualified nor was any issue taken with respect to their expertise in their particular area. There may be cases where a nominee is a reasonable course of action for which the Plaintiff should be compensated but that is not the case here. The claim for the nominees is denied." - See paragraphs 47 to 50.

Practice - Topic 7140

Costs - Party and party costs - Disbursements - Cost of reports - The plaintiff was successful in a motor vehicle negligence action against the defendant - The plaintiff had an engineer prepare an accident reconstruction report and called the engineer as a witness at trial - The plaintiff claimed the cost of the report as a disbursement - The defendant argued that since liability was admitted, there was no need to incur the cost - The Alberta Court of Queen's Bench stated that "while it would usually not be necessary to incur these costs for this type of accident, it was helpful here for two reasons. One was that causation was disputed by the Defendants, and the other was the dynamics of this accident. The angle at which the Defendant's vehicle hit the Plaintiff's vehicle and the dynamics of the Plaintiff's vehicle then hitting three other vehicles was relevant to causation. It was reasonable to incur this cost in this case and the disbursement is allowed both for the report and the trial testimony." - See paragraphs 31 to 33.

Practice - Topic 7247

Costs - Party and party costs - Offers to settle - Costs to unsuccessful defendant - The plaintiff obtained judgment for $347,000 against the defendant - On September 1, 2011, the plaintiff offered to settle for $350,000 plus costs at mediation - That offer was open only to the end of that day - On September 2, 2011, and November 10, 2011, the plaintiff made subsequent offers to settle for $450,000 and $761,000 respectively - On November 15, 2011, the defendant offered to settle for $350,000 plus costs, which offer was open until the start of the trial - On November 18, 2011, the defendant increased the offer to $360,000, but the offer was open for three hours only - The trial commenced on November 21, 2011 - The defendant sought costs notwithstanding her offers were not formal offers under the Rules, nor Calderbank offers - The defendant claimed that the plaintiff should have accepted the offer she made three days before trial, where the plaintiff had offered to settle for that amount 2.5 months earlier - The plaintiff argued that the offers could not be compared, where she spent an additional $40,000 in those 2.5 months in preparing for trial - The Alberta Court of Queen's Bench declined to award the defendant costs based on her offer because "I am not prepared to grant the Defendant costs in the circumstances of this particular matter. An offer to settle before trial is always a factor to consider in costs and may often result in compensation to the party making the offer depending on the circumstances. In this case, I decline to make an award for costs to the Defendant for a number of reasons: a) There was a difference of under $4,000 between the offer made and the ultimate award. Had the award exceeded the offer, even marginally, counsel would not have even made this argument of set-off; b) While the offer was made before trial, it was only a week before trial and all records, expert reports, rebuttal reports and briefing had been completed by then; c) The offer was exactly the same offer the Plaintiff had put forward two and a half months earlier. While the decision of the Plaintiff to continually increase the amount of her offers to settle after the mediation did nothing for the settlement process, the original offer did reflect a range which the Plaintiff felt was reasonable at the time, the Defendant came to accept as reasonable and the court found was appropriate; d) The Defendant could have taken advantage of the formal offer to settle process set forth in Rule 4.24(1) by simply serving their offer a few days earlier. This would have given them all of the advantages set out in the Rules." - See paragraphs 63 to 71.

Cases Noticed:

Millott Estate et al. v. Reinhard et al. (2002), 322 A.R. 307; 2002 ABQB 998, refd to. [para. 16].

Blair v. Doerksen et al. (2009), 470 A.R. 310; 2009 ABQB 184, refd to. [para. 16].

Bowman v. Ralph's Arctic Cat Sales, [2012] A.R. Uned. 317; 2012 ABQB 205, refd to. [para. 29].

Evans v. Sports Corp. (2011), 523 A.R. 88; 2011 ABQB 616, refd to. [para. 29].

Petrogas Processing Ltd. v. Westcoast Transmission Co. (1990), 105 A.R. 384 (Q.B.), refd to. [para. 30].

Monashee Petroleums Ltd. v. Pan Cana Resources Ltd. (1988), 85 A.R. 183; 1988 ABCA 62, refd to. [para. 30].

MacCabe v. Board of Education of Westlock (Roman Catholic Separate) School District No. 110 et al. (1999), 243 A.R. 280; 1999 ABQB 666, refd to. [para. 30].

Byron v. Larson, [2003] A.R. Uned. 234; 2003 ABQB 347, refd to. [para. 41].

V.A.H. v. Lynch et al. (2001), 293 A.R. 395; 257 W.A.C. 395; 2001 ABCA 211, refd to. [para. 61].

Huet v. Lynch - see V.A.H. v. Lynch et al.

Dechant v. Law Society of Alberta (2001), 277 A.R. 333; 242 W.A.C. 333; 2001 ABCA 81, refd to. [para. 61].

Counsel:

Norma C. Mayer and Morris Warren, for the plaintiff;

Taryn Burnett and Derrick Pagenkopf, for the defendant.

This application was heard on July 16, 2013, before Kenny, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on October 4, 2013.