Holizki Estate et al. v. Public Trustee (Alta.) et al.

• Jurisdiction: Alberta
• Court: Court of Queen's Bench of Alberta (Canada)
• Judge: Martin, J.
• Citation: (2009), 462 A.R. 127 (QB),2009 ABQB 260
• Date: 13 March 2009

Holizki Estate v. Public Trustee (2009), 462 A.R. 127 (QB)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. MY.079

Lorene Mary Holizki as the Administrator of the Estate of Kalei Jasmine Holizki, deceased, and Lorene Mary Holizki (plaintiffs) v. The Public Trustee for the Province of Alberta, Administrator ad litem of the Estate of Andrew Derek Fisher, deceased, the said Andrew Derek Fisher, deceased, the Public Trustee for the Province of Alberta, Administrator ad litem of the Estate of Nathan Gregory Mossfeldt, deceased, Anna Elizabeth Lane, Administrator of the Estate of Nathan Gregory Mossfeldt, deceased, the said Nathan Gregory Mossfeldt, deceased, Ronald Kenneth McCabe, City Wide Towing and Recovery Service Ltd., Aviva Insurance Company of Canada, formerly named CGU Insurance Company of Canada and John Doe (defendants)

(0301 10461)

Ronald Kenneth McCabe (plaintiff) v. Edward Wolfman as Administrator ad litem of the Estate of Andrew Derek Fisher, deceased, Jane Doe I, John Doe I, Edward Wolfman as Administrator ad litem of the Estate of Nathan Gregory Mossfeldt, deceased, Jane Doe II and John Doe II (defendants)

(0301 10887)

Jared Vandenbrink (plaintiff) v. The Public Trustee for the Province of Alberta, Administrator ad litem of the Estate of Andrew Derek Fisher, the said Andrew Derek Fisher, deceased, the Public Trustee for the Province of Alberta, Administrator ad litem of the Estate of Nathan Gregory Mossfeldt, the said Nathan Gregory Mossfeldt, deceased, Ronald Kenneth McCabe, City Wide Towing and Recovery Service Ltd., John Doe I, John Doe II, John Doe III, John Doe IV (defendants)

(0301 12518)

Anna Elizabeth Lane, Administratrix of the Estate of Nathan Gregory Mossfeldt, deceased (plaintiff) v. Ronald Kenneth McCabe, City Wide Towing and Recovery Service Ltd., and the Public Trustee for the Province of Alberta, Administrator ad litem of the Estate of Andrew Derek Fisher, deceased (defendants)

(0301 12653)

Michael McDonough, Laurel McDonough and Michael McDonough as Administrator of the Estate of Trevor Lee Francis McDonough, deceased (plaintiffs) v. The Public Trustee for the Province of Alberta, as Administrator ad litem of the Estate of Andrew Derek Fisher, deceased, the Public Trustee for the Province of Alberta as Administrator ad litem of the Estate of Nathan Gregory Mossfeldt, deceased, Ronald Kenneth McCabe and City Wide Towing and Recovery Service Ltd. (defendants)

(0301 12878)

Philip Joseph Comstock, Administrator of the Estate of Ashley Elizabeth Comstock, deceased, Holly Comstock (plaintiffs) v. City Wide Towing and Recovery Service Ltd., Ronald McCabe, John Doe I, John Doe II, Gary Hansen as Administrator ad litem of the Estate of Andrew Derek Fisher, deceased, Gary Hansen as Administrator ad litem of the Estate of Nathan Gregory Mossfeldt, deceased, John Doe III and John Doe IV (defendants)

(0301 13154)

Stephen Brown, Administrator of the Estate of Robert James Brown, deceased, Rosa Brown (plaintiffs) v. City Wide Towing and Recovery Service Ltd., Ronald McCabe, John Doe I, John Doe II, Gary Hansen as Administrator ad litem of the Estate of Andrew Derek Fisher, deceased, Gary Hansen as Administrator ad litem of the Estate of Nathan Gregory Mossfeldt, deceased, John Doe III and John Doe IV (defendants)

(0301 13155; 2009 ABQB 260)

Indexed As: Holizki Estate et al. v. Public Trustee (Alta.) et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Martin, J.

May 13, 2009.

Summary:

Nine teenage friends went camping together. On the return trip the next morning, one of the two cars they were travelling in broke down. Two individuals stayed with the car, while the seven others left in the other car. The first driver became sleepy and another passenger (Fisher) took over the wheel. About 10 to 15 minutes after the change of drivers, the car was involved in a head on collision with a flatbed tow truck. Before impact the car had gone into the oncoming lane, hit a guardrail and was on the tow truck's side of the road. The car returned to its lane and the tow truck tracked it into this lane. The impact flipped the car and it came to rest on its top. The only passenger in the car to survive was Vandenbrink who was travelling in the trunk and was thrown from the car. The driver of the truck also survived. Both sustained injuries. Six teenagers (two girls, Holizki and Comstock, and three boys, Mossfeldt, Brown and McDonough (collectively, the infant plaintiffs) and the driver, Fisher) were killed. This case involved claims on behalf of the passengers in the car against the owner and driver of both the car (Fisher) and the tow truck (McCabe) and a claim by McCabe against Fisher. No claim was advanced by Fisher. Seven separate actions were consolidated into this trial. At issue was liability and apportionment.

The Alberta Court of Queen's Bench, in a decision reported at 462 A.R. 85, held that both Fisher and McCabe had not met the standard of care of a reasonable and prudent driver. The negligence of Fisher and McCabe combined to cause the collision and they were jointly and severally liable for the losses sustained. In all the circumstances liability was apportioned at 65% to Fisher and 35% to McCabe. Total damages awarded were $3,211,676.95. Before trial the parties were involved in settlement discussions. Among the correspondence, three communications had the most significance. They were: an August 13, 2008 letter from the Fisher defendants (the August offer); a September 13, 2008 e-mail from the infant plaintiffs (the plaintiffs' offer); and a September 14 e-mail from the Fisher defendants (the September counter-offer). Everyone but the McCabe defendants were prepared to accept the relevant offers. The McCabe defendants took the position during negotiations and at trial that they had no liability. At issue was the costs consequences which ought to attach to that decision after they were found to be jointly and severally liable for 35% of the loss. In this application, the Fisher defendants sought a cost award, including expert costs, against the McCabe defendants based on what they say were enforceable and relevant pre-trial offers of settlement.

The Alberta Court of Queen's Bench awarded costs to the Fisher defendants from the time of the September counter-offer, both in respect of their own costs and their proportion of the plaintiffs' costs.

Practice - Topic 7241

Costs - Party and party costs - Offers to settle - General (incl. what constitutes and validity) - The Alberta Court of Queen's Bench discussed the requirements and effect of Calderbank offers generally and between co-defendants - A Calderbank offer was a form of settlement proposal in which a party expressly stated that if the settlement offer was not accepted, that party reserved the right to refer to the offer in any costs hearing - Calderbank offers did not attract the same cost consequences as formal offers made under the Rules of Court - The Rules provided for formal offers in a specific form, which presumptively yielded double costs if not exceeded or bettered as measured against the results obtained - By contrast, there was no prescribed form for a Calderbank offer - While there was no magic formula in terms of wording, the recipient had to be able to appreciate that no privilege would attach to that communication at the costs stage - A court had to ascertain whether it was reasonable to accept the offer at the time it was made and what impact, if any, it should have on the court's discretion on costs - A Calderbank offer was one of many factors a court might consider in setting costs - However, its presence yielded no presumption of a cost award outside the normal rules, even though in appropriate cases it might be seen as a weighty factor supporting a different order as to costs - The court found the public policy in favour of settlement equally germane where the main issues were liability and apportionment - Rule 601 provided guidance and it was sufficiently broad to allow consideration of Calderbank offers as between co-defendants - See paragraphs 39 to 52.

Practice - Topic 7241

Costs - Party and party costs - Offers to settle - General (incl. what constitutes and validity) - Six teenagers were killed when the car (driven by Fisher) they were travelling in was involved in a head on collision with a tow truck (driven by McCabe) - This case involved claims on behalf of the passengers in the car against the owner and driver of both the car (Fisher defendants) and the tow truck (McCabe defendants) and a claim by McCabe against Fisher - The trial judge held that both Fisher and McCabe had not met the standard of care of a reasonable and prudent driver - The negligence of Fisher and McCabe combined to cause the collision and they were jointly and severally liable for the losses sustained - In all the circumstances liability was apportioned at 65% to Fisher and 35% to McCabe - Total damages awarded were $3,211,676.95 - Before trial the parties were involved in settlement discussions - Among the correspondence, three communications had the most significance - There was, inter alia, an August 13, 2008 letter from the Fisher defendants (the August offer) - The Alberta Court of Queen's Bench held that "[a] Calderbank offer must leave the offeree in no reasonable doubt as to the nature and extent of what is being offered. The wording employed in paragraph 3 of the August Offer concerning costs was interpreted to mean different things by each set of Defendants. The combination of textual ambiguity and actual confusion over what costs were addressed calls into question whether the formal requirements of a Calderbank offer are present in relation to the August Offer. I say this acknowledging that the McCabe Defendants agreed that the August Offer was a Calderbank offer. Even if this admission binds them, the absence of clarity means it would not be unreasonable for them to reject an offer when they could not assess its real value. The August Offer therefore cannot be relied upon to affect a costs award" - See paragraph 54.

Practice - Topic 7241

Costs - Party and party costs - Offers to settle - General (incl. what constitutes and validity) - Six teenagers were killed when the car (driven by Fisher) they were travelling in was involved in a head on collision with a tow truck (driven by McCabe) - This case involved claims on behalf of the passengers in the car against the owner and driver of both the car (Fisher defendants) and the tow truck (McCabe defendants) and a claim by McCabe against Fisher - The trial judge held that both Fisher and McCabe had not met the standard of care of a reasonable and prudent driver - The negligence of Fisher and McCabe combined to cause the collision and they were jointly and severally liable for the losses sustained - In all the circumstances liability was apportioned at 65% to Fisher and 35% to McCabe - Total damages awarded were $3,211,676.95 - Before trial the parties were involved in settlement discussions - Among the correspondence, three communications had the most significance - They were, inter alia, a September 13, 2008 e-mail from the infant plaintiffs (the plaintiffs' offer); and a September 14 e-mail from the Fisher defendants (the September counter-offer) - The McCabe defendants asserted that the September correspondence was done on a "without prejudice" basis and in furtherance of settlement - They argued that a joint privilege attached to these communications, which could not be unilaterally waived - The Alberta Court of Queen's Bench held that the September counter-offer was a Calderbank offer - Even if this was a "without prejudice" communication, that would not affect the outcome - The Calderbank principle applied to offers stated to be "Without Prejudice" as long as they clearly communicated that they will be relied upon in relation to costs - The parties were sophisticated, knew the context in which they were communicating and previous correspondence from the Fisher defendants referenced applicable law, including citations - No one claimed that they did not understand what was intended by the Fisher defendants' express reservation of the ability to quote their correspondence in a costs determination in the September counter-offer - See paragraphs 55 to 62.

Practice - Topic 7243

Costs - Party and party costs - Offers to settle - Effect of failure to accept - Six teenagers were killed when the car (driven by Fisher) they were travelling in was involved in a head on collision with a tow truck (driven by McCabe) - This case involved claims on behalf of the passengers in the car against the owner and driver of both the car (Fisher defendants) and the tow truck (McCabe defendants) and a claim by McCabe against Fisher - The trial judge held that both Fisher and McCabe had not met the standard of care of a reasonable and prudent driver - The negligence of Fisher and McCabe combined to cause the collision and they were jointly and severally liable for the losses sustained - In all the circumstances liability was apportioned at 65% to Fisher and 35% to McCabe - Total damages awarded were $3,211,676.95 - Before trial the parties were involved in settlement discussions - Among the correspondence, three communications had the most significance - They were: an August 13, 2008 letter from the Fisher defendants (the August offer); a September 13, 2008 e-mail from the infant plaintiffs (the plaintiffs' offer); and a September 14 e-mail from the Fisher defendants (the September counter-offer) - Everyone but the McCabe defendants were prepared to accept the relevant offers - The McCabe defendants took the position during negotiations and at trial that they had no liability - At issue was the costs consequences which ought to attach to that decision after they were found to be jointly and severally liable for 35% of the loss - In this application, the Fisher defendants sought a cost award, including expert costs, against the McCabe defendants based on what they say were enforceable and relevant pre-trial offers of settlement - The Alberta Court of Queen's Bench awarded costs to the Fisher defendants from the time of the September counter-offer, both in respect of their own costs and their proportion of the plaintiffs' costs - See paragraphs 63 to 75.

Cases Noticed:

Calderbank v. Calderbank, [1975] 3 All E.R. 333 (C.A.), refd to. [para. 14].

Geleta et al. v. Alberta (Minister of Transportation and Utilities) (1996), 193 A.R. 67; 135 W.A.C. 67 (C.A.), refd to. [para. 40].

Amoco Canada Petroleum Co. et al. v. Propak Systems Ltd. et al. (2001), 281 A.R. 185; 248 W.A.C. 185; 2001 ABCA 110, refd to. [para. 41].

McAteer et al. v. Devoncroft Developments Ltd. et al. (2003), 340 A.R. 1; 2003 ABQB 425, refd to. [para. 44].

Worton v. Black, [2006] A.R. Uned. 240; 2006 ABQB 200, refd to. [para. 49].

Mosher v. Reimer, [2004] A.R. Uned. 555; 2004 ABQB 496, refd to. [para. 49].

Stamper v. Finnigan et al. (1988), 84 N.B.R.(2d) 362; 214 A.P.R. 362 (T.D.), dist. [para. 49].

Domenicantonio v. Finnigan - see Stamper v. Finnigan et al.

376599 Alberta Inc. v. Tanshaw Products Inc. et al. (2006), 402 A.R. 328; 2006 ABQB 470, refd to. [para. 50].

Co-Operators General Insurance Co. v. Johnson, [1992] A.J. No. 162 (C.A.), refd to. [para. 54].

Leonardis v. Leonardis, [2003] A.R. Uned. 391; 2003 ABQB 577, dist. [para. 59].

Alberta Permit Pro et al. v. Booth et al. (2008), 459 A.R. 320; 89 Alta. L.R.(4th) 307; 2008 ABQB 167, refd to. [para. 59].

Duncan Estate v. Baddeley (2000), 266 A.R. 323; 228 W.A.C. 323; 2000 ABCA 277, refd to. [para. 65].

Counsel:

S. Robertson and C. Plante, for the plaintiffs, Holizki and McDonough;

T. Turple and S. Flannigan, for the plaintiffs, Brown and Comstock;

B. Devlin, Q.C., for the plaintiff, Mossfeldt;

B. Popovic, for the plaintiff, Vandenbrink;

P. Ridout, for the plaintiff, McCabe;

B. Churchill-Smith, Q.C., for the defendants, Fisher and Mossfeldt;

K. Haluschak and J. Yeo, for the defendants, McCabe and City Wide Towing;

P.J. Stein, for the Insurer of the Estate of Andrew Derek Fisher.

This application was heard on March 13, 2009, by Martin, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for judgment on May 13, 2009.