Dabrowski v. Robertson, 2007 ABQB 680

• Judge: Veit, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 08, 2007
• Citations: 2007 ABQB 680;(2007), 438 A.R. 1 (QB)

Dabrowski v. Robertson (2007), 438 A.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. JA.093

Marek Dabrowski and Bozna Dabrowski (plaintiffs) v. Rhonda Robertson (defendant) and Manitoba Public Insurance Corporation (third party)

(0403 02958; 2007 ABQB 680)

Indexed As: Dabrowski v. Robertson

Alberta Court of Queen's Bench

Judicial District of Edmonton

Veit, J.

December 21, 2007.

Summary:

Dabrowski sued Robertson for damages arising from a motor vehicle accident.

The Alberta Court of Queen's Bench, in a decision reported at 419 A.R. 359, dismissed the action. The parties agreed that trial costs were $187,000. Dabrowski asserted that he should not be required to pay costs because of what he characterized as unethical conduct by the defence lawyers. Specifically, Dabrowski stated that as soon as defence counsel realized that Robertson would, at trial, give strikingly different evidence than the evidence she gave at discovery, her lawyers should have so advised him.

The Alberta Court of Queen's Bench held that Dabrowski was required to pay the costs as established.

Practice - Topic 4166

Discovery - General principles - Requirement for accurate, timely and ongoing disclosure - [See Practice - Topic 7021 ].

Practice - Topic 7021

Costs - Party and party costs - Entitlement to party and party costs - Successful party - Exceptions - Conduct (incl. counsel) - Dabrowski sued Robertson for damages arising from a motor vehicle accident - The action was dismissed - The parties agreed that trial costs were $187,000 - Dabrowski asserted that he should not be required to pay costs because of what he characterized as unethical conduct by the defence lawyers - Specifically, Dabrowski stated that as soon as defence counsel realized that Robertson would, at trial, give strikingly different evidence than the evidence she gave at discovery, her lawyers should have so advised him - The Alberta Court of Queen's Bench held that Dabrowski was required to pay the costs as established - Alberta's Rules of Practice did not yet impose an obligation of evergreen oral discovery on a litigant - Therefore, Robertson's lawyers' conduct should not deprive Robertson of her costs - If Robertson's lawyers had breached a professional obligation as set out in Chapter 4, Rule 2, of Alberta's Code of Professional Conduct, Dabrowski had to take that up with the Law Society - Further, the exercise of judicial discretion in the matter of costs, independently of the Rules and the Code of Conduct, but taking into account a lawyer's common law obligations, should not be deployed in Dabrowski's favour - Dabrowski had not established that telling him at an earlier time of the change of evidence would have produced any change in his trial strategy.

Cases Noticed:

Maryland Casualty Co. v. Roland Roy Fourrures Inc. (1973), 35 D.L.R.(3d) 591 (S.C.C.), consd. [para. 8].

Pfeifer et al. v. Westfair Foods Ltd. (2003), 347 A.R. 236 (Q.B.), refd to. [para. 8].

Pfeifer et al. v. Westfair Foods Ltd. (2004), 361 A.R. 261; 339 W.A.C. 261 (C.A.), consd. [para. 8].

Travelers Indemnity Co. of Canada v. Kehoe (1985), 66 N.S.R.(2d) 434; 152 A.P.R. 434; 1985 CarswellNS 81 (C.A.), dist. [para. 8].

Singh v. Singh, 1992 CarswellOnt 322 (Gen. Div.), dist. [para. 8].

Morris et al. v. Hunt Morris & Associates (1982) Ltd. et al. (1987), 78 A.R. 96 (Q.B.), dist. [para. 8].

Garand v. Mutual of Omaha Insurance Co. et al. (2001), 297 A.R. 286 (Q.B.), refd to. [para. 8].

Marchand v. Public General Hospital Society of Chatham et al. (2000), 138 O.A.C. 201; 2000 CarswellOnt 4362 (C.A.), refd to. [para. 9].

Mitran v. Guarantee RV Centre Inc. et al. (1999), 251 A.R. 77 (Q.B.), refd to. [para. 10].

Canada Deposit Insurance Corp. v. Canadian Commercial Bank (1989), 95 A.R. 1 (Q.B.), refd to. [para. 10].

Vulcan (Town) v. Custom Trenching Ltd. et al., [1984] A.J. No. 917 (Q.B.), refd to. [para. 10].

Ridge View Development & Holding Co. v. Simper, [1989] A.J. No. 451 (Q.B.), refd to. [para. 11].

Enerchem Shipmanagement Inc. v. Ship Coastal Canada and Greater Sarnia Investment Corp. et al., [1988] 3 F.C. 421; 83 N.R. 256 (F.C.A.), refd to. [para. 11].

Law Society of Alberta v. Piragoff, [2005] L.S.D.D. No. 52, consd. [para. 11].

Ontario Bean Producers' Marketing Board v. Thompson (W.G.) & Sons Ltd., [1982] O.J. No. 3173 (Div. Ct.), consd. [para. 11].

M.M.K. v. P.R.M., [1996] O.J. No. 355 (Gen. Div.), refd to. [para. 11].

Kay v. Posluns, [1989] O.J. No. 1914 (H.C.), refd to. [para. 11].

Dubkov v. Junction Towing, [1992] O.J. No. 993 (Gen. Div.), refd to. [para. 11].

Schon v. Hodgins, [1988] O.J. No. 839 (Dist. Ct.), refd to. [para. 11].

Dybongco-Rimando Estate et al. v. Lee et al., [1999] O.J. No. 1426 (Gen. Div.), refd to. [para. 11].

Capela v. Rush et al., [2002] O.T.C. 257 (Sup. Ct.), dist. [para. 11].

Berrinsken v. American National Fire Insurance Co. (1967), 59 W.W.R.(N.S.) 462 (Sask. Q.B.), refd to. [para. 11].

Gerling Global General Insurance Co. et al. v. Canadian Occidental Petroleum Ltd. et al. (1998), 230 A.R. 39; 1998 ABQB 714, refd to. [para. 11].

Burke v. Gauthier (1987), 24 C.P.C.(2d) 281 (Ont. H.C.), consd. [para. 31].

Authors and Works Noticed:

Law Society of Alberta, Code of Professional Conduct, c. 4, rule 2; c. 7, rule 7 [para. 17].

Proulx, Michel, and Layton, David, Ethics and Canadian Criminal Law (2001), p. 172 ff. [para. 25].

Counsel:

Dan Cavanagh and Darcy McAllister (Student-at-Law) (Weir Bowen), for the plaintiffs;

Trevor MacDonald (Burnett Duckworth Palmer), for the defendant;

Ward Hanson and Emily Thompson (Student-at-Law) (Fraser Milner Casgrain), for the third party.

This matter was heard on November 8, 2007, before Veit, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following memorandum of decision on December 21, 2007.