Davidson v. Patten et al., (2005) 381 A.R. 6 (QB)

JudgeMahoney, J.
CourtCourt of Queen's Bench of Alberta (Canada)
Case DateJuly 08, 2005
Citations(2005), 381 A.R. 6 (QB);2005 ABQB 521

Davidson v. Patten (2005), 381 A.R. 6 (QB)

MLB headnote and full text

Temp. Cite: [2005] A.R. TBEd. JL.085

Daniel Davidson (plaintiff) v. Scott Patten, Shaganappi Motors (1976) Ltd., General Motors Acceptance Corporation of Canada, GMAC Leasco Limited, ABC Company Ltd. and ABC Leasing Ltd. (defendants)

(0101 00192; 2005 ABQB 521)

Indexed As: Davidson v. Patten et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Mahoney, J.

July 8, 2005.

Summary:

The plaintiff was a passenger in a motor vehicle driven by his spouse when they were both injured after being hit head-on by an impaired driver. The plaintiff sued for damages. Liability was admitted.

The Alberta Court of Queen's Bench, in a decision reported at [2004] A.R. Uned. 625; 2004 ABQB 681, awarded the plaintiff damages of $641,000 plus judgment interest and costs. The court heard submissions on costs.

The Alberta Court of Queen's Bench awarded costs accordingly.

Editor's note: for a related case, see 381 A.R. 1; 2005 ABQB 519.

Practice - Topic 7060.1

Costs - Party and party costs - Counsel fees - At hearing of trial or appeal - The plaintiff was a passenger in a motor vehicle driven by his spouse when they were both injured after being hit head-on by an impaired driver - They sued for damages and the actions were heard separately but sequentially - The trial judge awarded the plaintiff damages of $641,000 plus judgment interest and costs - The plaintiff and his spouse sought costs - At issue was whether trial time associated with issues common to both could be claimed in full by each plaintiff - The Alberta Court of Queen's Bench held that "it is inappropriate to seek to recover full costs, for first and second counsel, in both actions, for a single day or half day of trial time devoted to common issues. Therefore, where there is a claim for trial time devoted to common issues the Plaintiff will have one half the scheduled amount" - See paragraphs 26 to 30.

Practice - Topic 7063

Costs - Party and party costs - Counsel fees - Special or additional counsel - The plaintiff was a passenger in a motor vehicle driven by his spouse when they were both injured after being hit head-on by an impaired driver - They sued for damages and the actions were heard separately but sequentially - The trial judge awarded the plaintiff damages of $641,000 plus judgment interest and costs - The plaintiff and his spouse claimed second counsel fees - The Alberta Court of Queen's Bench allowed the claim - The most equitable manner of dealing with second counsel fees was to allow them in both actions - The actions were complex enough to warrant second counsel and the law suggested that the court err on the side of allowing them - See paragraphs 15 to 19.

Practice - Topic 7140

Costs - Party and party costs - Disbursements - Cost of reports - The plaintiff was a passenger in a motor vehicle driven by his spouse when they were both injured after being hit head-on by an impaired driver - The trial judge awarded the plaintiff damages of $641,000 plus judgment interest and costs - The plaintiff claimed reimbursement of a collision reconstruction report prepared before the statement of claim was filed - The Alberta Court of Queen's Bench allowed the claim - Rule 600(1)(a) used the phrase "reasonable and proper expenses ... for the purpose of carrying on or appearing as a party to any proceeding" - The words "carrying on" had to reasonably include the commencement of the proceeding so that a party could recover the expense of filing an initiating document like a statement of claim - A disbursement, like a collision reconstruction report, reasonably and properly incurred by a party regarding an action which did proceed had to qualify as an expense incurred to carry on the proceedings - See paragraphs 34 to 39.

Practice - Topic 7141.1

Costs - Party and party costs - Disbursements - Cost of medical nominee attending independent examination - The plaintiff was a passenger in a motor vehicle driven by his spouse when they were both injured after being hit head-on by an impaired driver - The trial judge awarded the plaintiff damages of $641,000 plus judgment interest and costs - The plaintiff claimed the cost of a medical nominee to attend at the independent medical examination - The Alberta Court of Queen's Bench disallowed the claim - While the court had the discretion to award this disbursement it was more appropriately done where the plaintiff led evidence that the attendance of the nominee was necessary - Surprise attendance by a nominee, without an explanation as to why, was professionally discourteous and offensive to the orderly gathering of expert evidence - The plaintiff failed to lead evidence as to why a nominee was necessary and, if it was, the reason for it should have been presented to the defendants in advance in order to claim the disbursement - See paragraph 40.

Practice - Topic 7145

Costs - Party and party costs - Disbursements - Items essential or reasonably necessary to conduct of action or appeal - [See Practice - Topic 7140 ].

Practice - Topic 7150.5

Costs - Party and party costs - Disbursements - Court fees - [See Practice - Topic 7140 ].

Practice - Topic 7242.1

Costs - Party and party costs - Offers to settle - Grounds for denying double costs -The plaintiff was a passenger in a motor vehicle driven by his spouse when they were both injured after being hit head-on by an impaired driver - The trial judge awarded the plaintiff damages of $641,000 plus judgment interest and costs - The plaintiff recovered judgment in an amount more than he offered to settle and sought double costs - The defendants argued that the plaintiff should not be awarded double costs - They contended that in view of a late filed report of a medical expert, filed with the court's permission, the plaintiff's claim was a "moving target" - The Alberta Court of Queen's Bench rejected the argument - The significance and similarity of the medical evidence from both the plaintiff and the defendants' experts provided enough expert opinion to come to a reasonable assessment of the plaintiff's claim - See paragraphs 12 to 14.

Cases Noticed:

Garand v. Mutual of Omaha Insurance Co. et al. (2001), 297 A.R. 286 (Q.B.), refd to. [para. 4].

Kang v. Kang et al., [2002] B.C.T.C. 1318; 43 C.C.L.I.(3d) 155 (S.C.), refd to. [para. 4].

Alberta (Treasury Branches) v. Leahy et al. (1999), 234 A.R. 201; 1999 ABQB 185, refd to. [para. 6].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353, refd to. [para. 6].

Mitran v. Guarantee RV Centre Inc. et al. (1999), 251 A.R. 77; 72 Alta. L.R.(3d) 54 (Q.B.), refd to. [para. 11].

Reeves v. Gauthier et al. (1996), 137 Nfld. & P.E.I.R. 127; 428 A.P.R. 127; 46 C.P.C.(3d) 248 (P.E.I.T.D.), dist. [para. 13].

Kassam v. Dragish (1991), 123 A.R. 161 (Q.B.), refd to. [para. 16].

Ropchan v. Duncan (1992), 134 A.R. 224 (Q.B.), refd to. [para. 16].

Viridian v. Dresser Canada Inc., [1998] A.R. Uned. 578; 1998 ABCA 275, refd to. [para. 16].

Farnsworth v. Raubenheimer, Freiburghaus and MacDonald (1978), 13 A.R. 539 (T.D.), refd to. [para. 28].

Dwyer v. Fox et al. (1996), 181 A.R. 223; 116 W.A.C. 223 (C.A.), refd to. [para. 31].

Sidorsky et al. v. CFCN Communications Ltd. et al. (1998), 216 A.R. 151; 175 W.A.C. 151 (C.A.), refd to. [para. 31].

Kha v. Salhab et al. (2001), 282 A.R. 324; 2001 ABQB 44, refd to. [para. 34].

Bow Island (Municipal District) v. Wortz, [1921] 2 W.W.R. 153 (Alta. C.A.), dist. [para. 34].

Millott Estate et al. v. Reinhard et al. (2002), 322 A.R. 307; 2002 ABQB 998, refd to. [para. 34].

Harper v. Canada (Attorney General), [2000] 2 S.C.R. 764; 262 N.R. 201; 271 A.R. 201; 234 W.A.C. 201; 2000 SCC 57, refd to. [para. 36].

Monashee Petroleums Ltd. v. Pan Cana Resources Ltd. (1988), 85 A.R. 183 (C.A.), refd to. [para. 38].

Erco Industries Ltd. v. Allendale Mutual Insurance Co. (1984), 13 D.L.R.(4th) 213 (Ont. H.C.), refd to. [para. 39].

Garrido v. Pui (1998), 222 A.R. 248 (Q.B.), appld. [para. 40].

Morales v. Seymour (1997), 205 A.R. 151; 52 Alta. L.R.(3d) 112 (Q.B.), dist. [para. 40].

Pohynayko v. Vries (2001), 277 A.R. 72; 242 W.A.C. 72 (C.A.), appld. [para. 40].

Nova, an Alberta Corp. v. Guelph Engineering Co., [1988] A.J. No. 611 (Q.B.), refd to. [para. 41].

Lauscher v. Berryere (Bankrupt) et al. (1997), 157 Sask.R. 117 (Q.B.), refd to. [para. 42].

Moser v. Derksen (2003), 335 A.R. 204 (Q.B.), refd to. [para. 46].

Hunt v. Douglas (R.M.) Roofing Ltd., [1988] 3 W.L.R. 975; [1988] 3 All E.R. 823; [1990] 1 A.C. 398 (H.L.), refd to. [para. 51].

Statutes Noticed:

Rules of Court (Alta.), rule 600(1)(a) [para. 37].

Authors and Works Noticed:

Orkin, Mark M., The Law of Costs (2nd Ed.), p. 2-55 [para. 4].

Stevenson, William A., and Côté, Jean E., Alberta Civil Procedure Guide (1996), p. 1940 [para. 51].

Stevenson, William A., and Côté, Jean E., Civil Procedure Encyclopedia, vol. 4, p. 72-13 [para. 27].

Counsel:

Morris B. Warren and Norma Mayer (Pipella Warren), for the plaintiff;

Jerri L. Cairns, Nancy Carruthers and Kimberley Bufton (Parlee McLaws), for the defendants.

This case was heard on February 22 to 25, 2005, by Mahoney, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for judgment on costs on July 8, 2005.

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21 practice notes
  • Table of cases
    • Canada
    • Irwin Books Archive Legal Research and Writing. Third Edition
    • September 6, 2010
    ...(1984)........................................................................................................... 327 Davidson v. Patten, 2005 ABQB 521 .................................................................... 18 Davies v. Clarington (Municipality), 2007 CarswellOnt 7413 (S.C.J.)......
  • Table of cases
    • Canada
    • Irwin Books Legal Research and Writing. Fourth Edition
    • June 23, 2016
    ...24–25 Dableh v Ontario Hydro, 1998 CanLII 7568 (FCA) ............................................ 22 Davidson v Patten, 2005 ABQB 521 ..................................................................... 25 Davies v Clarington (Municipality), 2007 CanLII 49484 (Ont SCJ) ................... ......
  • Introduction to Legal Research and Writing
    • Canada
    • Irwin Books Legal Research and Writing. Fourth Edition
    • June 23, 2016
    ..., 2015 ABQB 235 at para 217; Marshall RVR (2000) Ltd (cob Budget Rent a Car) v Gorman , 2007 ABPC 313 [ Marshall ]; Davidson v Patten , 2005 ABQB 521 (not allowed as a disbursement under the tariff); Milsom v Corporate Computers Inc , 2003 ABQB 609 (disbursement to a legal research firm not......
  • Introduction to Legal Research and Writing
    • Canada
    • Irwin Books Archive Legal Research and Writing. Third Edition
    • September 6, 2010
    ...research allowed]. 31 Marshall RVR (2000) Ltd. (c.o.b. Budget Rent a Car) v. Gorman , 2007 ABPC 313 [ Marshall ]; Davidson v. Patten , 2005 ABQB 521 [not allowed as a disbursement under the tariff]; Milsom v. Corporate Computers Inc. , 2003 ABQB 609 [disbursement to a legal research f‌irm n......
  • Request a trial to view additional results
17 cases
  • Owners-Condominium Plan No. 0125764 v. Amber Equities Inc. et al., 2015 ABQB 235
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • February 26, 2015
    ...Case Law Research" of $1,000 would not appear to claimable as a disbursement. Justice Mahoney stated the following in Davidson v Patten , 2005 ABQB 521 at para 46: Office Overhead, Research (including Quicklaw) Expenses. .... Legal research was addressed by Justice Rowbotham in Moser v Derk......
  • Chapell v. Canadian Pacific Railway Co., 2011 ABQB 74
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • October 13, 2010
    ...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. Viridian Inc. v. Dresser Canada Inc. et al., [19......
  • Clancy v. Gough et al., (2011) 523 A.R. 163 (QB)
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • September 26, 2011
    ...leading up to presentation of the matter and such involvement must be justified by the nature of the case: Davidson v. Patten , 2005 ABQB 521, 381 A.R. 6 (Alta. Q.B.), var'd on other grounds 2008 ABCA 65 (Alta. C.A.) at para. 19. 30. The amount claimed in second counsel fees is also a perti......
  • Ma v. Coyne, 2013 ABQB 426
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • February 6, 2013
    ...321665 Alberta Ltd. v. ExxonMobil Canada Ltd. et al. (2012), 529 A.R. 276; 2012 ABQB 76, refd to. [para. 22]. Davidson v. Patten et al. (2005), 381 A.R. 6; 2005 ABQB 521, refd to. [para. Sidorsky et al. v. CFCN Communications Ltd. et al. (1997), 206 A.R. 382; 156 W.A.C. 382; 1997 ABCA 280, ......
  • Request a trial to view additional results
4 books & journal articles
  • Table of cases
    • Canada
    • Irwin Books Archive Legal Research and Writing. Third Edition
    • September 6, 2010
    ...(1984)........................................................................................................... 327 Davidson v. Patten, 2005 ABQB 521 .................................................................... 18 Davies v. Clarington (Municipality), 2007 CarswellOnt 7413 (S.C.J.)......
  • Table of cases
    • Canada
    • Irwin Books Legal Research and Writing. Fourth Edition
    • June 23, 2016
    ...24–25 Dableh v Ontario Hydro, 1998 CanLII 7568 (FCA) ............................................ 22 Davidson v Patten, 2005 ABQB 521 ..................................................................... 25 Davies v Clarington (Municipality), 2007 CanLII 49484 (Ont SCJ) ................... ......
  • Introduction to Legal Research and Writing
    • Canada
    • Irwin Books Legal Research and Writing. Fourth Edition
    • June 23, 2016
    ..., 2015 ABQB 235 at para 217; Marshall RVR (2000) Ltd (cob Budget Rent a Car) v Gorman , 2007 ABPC 313 [ Marshall ]; Davidson v Patten , 2005 ABQB 521 (not allowed as a disbursement under the tariff); Milsom v Corporate Computers Inc , 2003 ABQB 609 (disbursement to a legal research firm not......
  • Introduction to Legal Research and Writing
    • Canada
    • Irwin Books Archive Legal Research and Writing. Third Edition
    • September 6, 2010
    ...research allowed]. 31 Marshall RVR (2000) Ltd. (c.o.b. Budget Rent a Car) v. Gorman , 2007 ABPC 313 [ Marshall ]; Davidson v. Patten , 2005 ABQB 521 [not allowed as a disbursement under the tariff]; Milsom v. Corporate Computers Inc. , 2003 ABQB 609 [disbursement to a legal research f‌irm n......

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