Hetu v. Traff et al., (1999) 252 A.R. 304 (QB)

• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 04, 1999
• Citations: (1999), 252 A.R. 304 (QB)

Hetu v. Traff (1999), 252 A.R. 304 (QB)

MLB headnote and full text

Temp. Cite: [1999] A.R. TBEd. NO.030

Nicole Hetu (plaintiff) v. Terrance N. Traff, Terrance Traff Professional Corporation, John Doe, Jane Doe No. 1 and Jane Doe No. 2, Valtchev Uterine Mobilizer Inc., Royal Alexandra Hospital of Edmonton and Capital Health Authority - Region 10 (defendants)

(9512-000827)

Indexed As: Hetu v. Traff et al.

Alberta Court of Queen's Bench

Judicial District of Wetaskiwin

Johnstone, J.

November 4, 1999.

Summary:

The plaintiff sued a doctor (Traff) et al. for damages caused by the doctor's medical malpractice when he performed a tubal ligation on the plaintiff. The issues were whether the doctor caused or materially contributed to the plaintiff's psychiatric disorder and the quantum of damages.

The Alberta Court of Queen's Bench, in a decision reported (1999), 247 A.R. 278, allowed the action and awarded, inter alia, $40,000 general damages. The defendant doctor took issue with three items claimed in the plaintiff's bill of costs, namely a second counsel fee, expert witness fees and charges incurred in hiring an out-of-province legal agent.

The Alberta Court of Queen's Bench, in the decision reported below, determined the issues accordingly.

Practice - Topic 7063

Costs - Party and party costs - Counsel fees - Employment of special or additional counsel - The plaintiff was successful in a medical malpractice suit against the defen­dant doctor - The defendant took issue with the plaintiff's claim for a second counsel fee in her bill of costs - The Alberta Court of Queen's Bench allowed the second counsel fee where the issues were not as straightforward and lacking in complexity as the defendant claimed and the second counsel was ac­tively involved in the trial process from start to finish - See paragraphs 9 to 15.

Practice - Topic 7085

Costs - Party and party costs - Witness fees and costs of preparation for trial or appeal - Expert witness fees - The plain­tiff was successful in a medical malprac­tice suit against the defendant doctor - The defendant took issue with the plain­tiff's claim for costs relating to certain expert witnesses - The Alberta Court of Queen's Bench determined the appropriate fees - See paragraphs 16 to 36.

Practice - Topic 7085

Costs - Party and party costs - Witness fees and costs of preparation for trial or appeal - Expert witness fees - The plain­tiff was successful in a medical malprac­tice suit against the defendant doctor - The defendant took issue with the plain­tiff's claim for costs relating to an expert wit­ness - The defendant argued that costs should be reduced because the expert witness did not disclose in a timely fashion a video tape which was pivotal because after it was viewed, the defendant quickly conceded liability - The expert witness claimed that he did not realize the perti­nence of the video tape - The Alberta Court of Queen's Bench reduced the wit­ness fee claimed for this expert witness considering the nature of the evidence given and the omission which resulted in a delay in the proceedings - See para­graphs 29 to 36.

Practice - Topic 7139

Costs - Party and party costs - Disburse­ments - Fees of solicitor's agent - The plaintiff was successful in a medical mal­practice suit against the defendant doctor - The defendant took issue with the plain­tiff's claim for charges incurred in hiring an out-of-province legal agent to locate an expert witness who was prepared to testify on the issue of negligence - The Alberta Court of Queen's Bench denied the agency fee because, if allowed, this would have the demonstrated effect of increasing the total legal fees taxable against the other party above the amount prescribed by the legislature for those fees - Second­ly, the professional service for locating and retain­ing experts was a normal task of counsel in preparation for a trial - See paragraphs 37 to 41.

Cases Noticed:

Jackson and Parkview Holdings Ltd. v. Trimac Industries Ltd. et al. (1993), 138 A.R. 161; 8 Alta. L.R.(3d) 403 (Q.B.), varied (1994), 155 A.R. 42; 73 W.A.C. 142; 20 Alta. L.R.(3d) 117 (C.A.), refd to. [para. 6].

Resse et al. v. Alberta (Minister of For­estry, Lands and Wildlife) et al. (1992), 133 A.R. 127; 5 Alta. L.R.(3d) 40 (Q.B.), refd to. [para. 6].

Petrogas Processing Ltd. v. Westcoast Transmission Co. (1990), 105 A.R. 384; 73 Alta. L.R.(2d) 246 (Q.B.), refd to. [para. 8].

Van Daele v. Van Daele, [1983] B.C.J. No. 1482 (C.A.), refd to. [para. 8].

Kassam v. Dragish (1991), 123 A.R. 161 (Q.B.), refd to. [para. 11].

Viridian Inc. v. Dresser Canada Inc. et al., [1998] A.R. Uned. 578 (C.A.), refd to. [para. 12].

Hamelin v. Canada et al., [1997] A.R. Uned. 77 (Q.B.), refd to. [para. 12].

Baker et al. v. Volk (1995), 170 A.R. 63 (Q.B.), refd to. [para. 12].

Schuttler v. Anderson (1999), 246 A.R. 17 (Q.B.), refd to. [para. 13].

Nova, An Alberta Corp. v. Guelph Engin­eering Co. (1988), 89 A.R. 363; 60 Alta. L.R.(2d) 366 (Q.B.), refd to. [para. 16].

Papp v. Nakaska (1989), 96 A.R. 161; 66 Alta. L.R.(2d) 382 (Q.B.), refd to. [para. 16].

Dellelce Construction & Equipment v. Portec Inc. (1990), 73 O.R.(2d) 396 (H.C.), refd to. [para. 17].

Morrison Petroleums Ltd. v. Phoenix Canada Oil Co. et al. (1998), 236 A.R. 95 (Q.B.), refd to. [para. 20].

Alberta Opportunity Co. v. Moulton et al. (1991), 117 A.R. 226; 2 W.A.C. 226; 84 Alta. L.R.(2d) 198 (C.A.), refd to. [para. 21].

Badry et al. v. Alberta Bakery Edmonton Ltd. and Sheckter, [1947] 2 W.W.R. 475, refd to. [para. 27].

Western Finance Co. and Rannard v. Tasker Enterprises Ltd. and Tasker, [1980] 1 W.W.R. 323; 1 Man.R.(2d) 338 (C.A.), refd to. [para. 27].

Graham Construction and Engineering (1985) Ltd. v. Alberta (1989), 101 A.R. 209 (Q.B.), refd to. [para. 31].

Nekoosa Packaging Corp. v. AMCA Inter­national Inc., [1991] F.C.J. No. 1145 (F.C.T.D.), refd to. [para. 40].

Florence v. Air Transport Committee, [1991] F.C.J. No. 80 (F.C.T.D.), refd to. [para. 40].

R.D. Moyen Holdings v. Kode Contracting Ltd., [1998] B.C.T.C. Uned. 034 (S.C.), refd to. [para. 40].

Sidorsky et al. v. CFCN Communications Ltd. et al. (1995), 167 A.R. 181 (Q.B.), refd to. [para. 40].

Authors and Works Noticed:

Orkin, Mark M., The Law of Costs (2nd Ed. 1987), p. 2-182 [para. 17].

Orkin, Mark M., The Law of Costs (1998 Looseleaf Ed.), pp. 2-26 [paras. 6, 32]; 2-27 [para. 32].

Phipson, The Law of Evidence (14th Ed. 1990), generally [para. 17].

Stevenson, W.A., and Côté, J.E., Alberta Civil Procedure Handbook 2000 (1999), p. 451 [para. 7].

Counsel:

R.L. Duke, Q.C., and Katrina M. Haymond (Miller Thomson), for the plaintiff;

Simon Johnson (Bennett Jones), for the defendant, Terrance N. Traff.

This application was heard before Johnson, J., of the Alberta Court of Queen's Bench, Judicial District of Wetaskiwin, who delivered the following judgment on Novem­ber 4, 1999.