Ma v. Coyne, 2013 ABQB 426

JudgeBensler, J.
CourtCourt of Queen's Bench of Alberta (Canada)
Case DateFebruary 06, 2013
Citations2013 ABQB 426;(2013), 568 A.R. 30 (QB)

Ma v. Coyne (2013), 568 A.R. 30 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. AU.090

Jian Guang Ma, Guo Chi Ma and Mei Fang Ma (plaintiffs/respondents) v. Delainey Lauren Coyne (defendant/appellant)

(0901 18916)

Maggie Yanyan Wen (plaintiff/respondent) v. Karen L. Bader (defendant/appellant)

(0901 10602; 2013 ABQB 426)

Indexed As: Ma v. Coyne

Alberta Court of Queen's Bench

Judicial District of Calgary

Bensler, J.

August 9, 2013.

Summary:

The defendant insurer appealed from an assessment officer's decision that allowed translation expenses that had been incurred before a statement of claim had been filed. The issues were (1) were disbursements for interpreter's fees a recoverable cost if they were incurred prior to the action's commencement and (2), if so, was the assessment officer's award reasonable and proper in the circumstances.

The Alberta Court of Queen's Bench held that pre-commencement interpreter's fees were a recoverable disbursement that was within an assessment officer's authority to award. Here, the award for interpreter costs relating to the completion of insurance forms and anticipated interpreter costs were disallowed.

Practice - Topic 7131

Costs - Party and party costs - Disbursements - General (incl. discretion of court) - The defendant insurer appealed from an assessment officer's decision that allowed translation expenses - At the hearing before the officer, the plaintiffs presented a bill for anticipated interpreter services for a final meeting after the issue of interpreter fees had been determined - The officer allowed the anticipated costs with the caveat that they seemed reasonable - On appeal, the insurer asserted that the award was a palpable error - The Alberta Court of Queen's Bench agreed - While it would be practical to allow anticipated reasonable costs, rule 10.41(1) stated that the officer may "determine whether the costs that a party incurred" were reasonable and proper - The operative word was "incurred" - Anticipated costs had not been incurred - The costs for anticipated interpreter services were not allowed - See paragraphs 58 to 62.

Practice - Topic 7131.1

Costs - Party and party costs - Disbursements - Expenses incurred before proceedings commenced - The defendant insurer appealed from an assessment officer's decision that allowed translation expenses that had been incurred before a statement of claim had been filed - The insurer asserted that the assessment officer had erred in principle in allowing pre-commencement costs given that there was binding authority (Bow Island (Municipal District) v. Wortz (1921 Alta. C.A.)) that directed otherwise - The Alberta Court of Queen's Bench rejected this argument - Rule 10.41 of the Rules of Court allowed an assessment officer to determine whether costs incurred by a party to "to file an application" were reasonable and proper - This represented a change from the old rules in that the phrase "to file an application" had been added, expanding the assessment officer's authority - "To file an application" included all reasonable steps that led up to the filing of an application, including pre-commencement translation costs - Wortz was distinguishable by the change in the rule's language - See paragraphs 22 to 28.

Practice - Topic 7131.1

Costs - Party and party costs - Disbursements - Expenses incurred before proceedings commenced - [See first Practice - Topic 7150.9 ].

Practice - Topic 7132

Costs - Party and party costs - Disbursements - Evidence required in support of - The defendant insurer appealed from an assessment officer's decision that allowed translation expenses that had been incurred before a statement of claim had been filed - At the hearing before the assessment officer, the insurer challenged the necessity of the expenses - The plaintiffs requested an adjournment to submit affidavit evidence to support their position that the translation expenses were necessary - The officer was satisfied that the plaintiffs had no notice that necessity was an issue, but chose not to adjourn the proceedings, concluding that affidavit evidence would not be determinative - On the appeal, the plaintiffs agreed that evidence was required to demonstrate necessity, but submitted that their onus was discharged by completing and filing a bill of costs - The Alberta Court of Queen's Bench indicated that a bill of costs did not discharge the onus of justifying the necessity and reasonableness of a pre-commencement expense - The circumstances in which the costs were incurred, including the nature and relative quantum were relevant in determining necessity and reasonableness - However, here, it was reasonable for the officer to proceed with the hearing - Further, it was reasonable for the officer to rule that the costs met the requisite threshold for necessity - See paragraphs 29 to 45.

Practice - Topic 7145

Costs - Party and party costs - Disbursements - Items essential or reasonably necessary to conduct of action or appeal - [See Practice - Topic 7131 and first Practice - Topic 7150.9 ].

Practice - Topic 7150.9

Costs - Party and party costs - Disbursements - Translation or interpretation services - The defendant insurer appealed from an assessment officer's decision that allowed translation expenses that had been incurred before a statement of claim had been filed - The insurer asserted that translator costs for assistance for the plaintiffs in completing the accident benefit claim (Section B claim) and property claim (Section C claim) were not the obligation of the third party liability insurer - The Alberta Court of Queen's Bench agreed - The interpreter fees for the completion of accident benefit claim and property claim forms were not directly related to the current action - Where the need for an interpreter arose, that might give rise to a separate head of special damages against the insurer, but that had not been pled - These interpreter fees were inappropriately categorized as a disbursement - The assessment officer made a palpable error in awarding interpreter costs for the completion of these forms - That portion of the officer's award was overturned - See paragraphs 46 to 57.

Practice - Topic 7150.9

Costs - Party and party costs - Disbursements - Translation or interpretation services - The defendant insurer appealed from an assessment officer's decision that allowed translation expenses that had been incurred before a statement of claim had been filed - The Alberta Court of Queen's Bench rejected the insurer's assertion that the interpreter fees were excessive - It was true that the assessment officer had set the rate at $80 per hour while the Court of Queen's Bench Costs Manual stated that interpreter's fees were set at $45 per hour - However, the officer's decision was not unreasonable - The higher rates were mitigated by this interpreter's practice of billing in smaller increments - Further, the officer had made a global adjustment by reducing the accounts by 20% - See paragraphs 63 to 69.

Practice - Topic 7603.1

Costs - Taxation of costs - Evidence and proof - [See Practice - Topic 7132 ].

Practice - Topic 7607

Costs - Taxation of costs - Procedure - [See Practice - Topic 7132 ].

Practice - Topic 8361

Costs - Appeals - Appeals from taxation - General (incl. standard of review) - The defendant insurer appealed from an assessment officer's decision that allowed translation expenses that had been incurred before a statement of claim had been filed - The issues were (1) were disbursements for interpreter's fees a recoverable cost if they were incurred prior to the action's commencement and (2), if so, was the assessment officer's award reasonable and proper in the circumstances - At issue was the standard of review - The Alberta Court of Queen's Bench held that the standard of review of an "assessment officer" in the new Rules of Court was comparable to that of a "review officer" or "taxing officer" under the old rules - The first issue was whether the assessment officer applied an erroneous legal principle - The standard of review was correctness - Regarding the second issue, the assessment officer was entitled to curial deference - The standard of review was reasonableness - See paragraphs 16 to 21.

Words and Phrases

To file an application - The Alberta Court of Queen's Bench considered the meaning of the phrase "to file an application" as found in rule 10.41 of the Rules of Court - See paragraphs 22 to 28.

Cases Noticed:

Rath & Co. v. Sweetgrass First Nation (2013), 559 A.R. 12; 2013 ABQB 165, refd to. [para. 16].

Fraser Milner Casgrain LLP v. Kristof Financial Inc. et al. (2012), 541 A.R. 245; 2012 ABQB 359, refd to. [para. 18].

Kha v. Salhab et al. (2001), 282 A.R. 324; 2001 ABQB 44, refd to. [para. 22].

Bow Island (Municipal District) v. Wortz (1921), 61 D.L.R. 87 (Alta. C.A.), dist. [para. 22].

Ukrainian (Edmonton) Credit Union Ltd. v. 258753 Alberta Ltd., Gourdine and Olsen (1984), 60 A.R. 148 (Q.B.), refd to. [para. 22].

Millott Estate et al. v. Reinhard et al. (2002), 322 A.R. 307; 2002 ABQB 998, refd to. [para. 22].

Murphy Oil Co. et al. v. Predator Corp. et al. (2005), 379 A.R. 388; 2005 ABQB 134, refd to. [para. 22].

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. 23].

Sidorsky et al. v. CFCN Communications Ltd. et al. (1997), 206 A.R. 382; 156 W.A.C. 382; 1997 ABCA 280, refd to. [para. 42].

Watts Estate et al. v. Contact Canada Tourism Services Ltd. et al., [2001] A.R. Uned. 115; 2001 ABCA 207, refd to. [para. 44].

Chisholm v. Lindsay, [2012] A.R. Uned. 361; 67 Alta. L.R.(5th) 233; 2012 ABQB 349, refd to. [para. 50].

Pepsi-Cola Canada Beverages (West) Ltd. v. Retail, Wholesale and Department Store Union, Local 558 et al., [2002] 1 S.C.R. 156; 280 N.R. 333; 217 Sask.R. 22; 265 W.A.C. 22; 2002 SCC 8, refd to. [para. 65].

Statutes Noticed:

Rules of Court (Alta.), rule 10.41 [para. 25].

Counsel:

Timothy J. Boyle (Spier Harben), for the plaintiffs/respondents, Jian Guang Ma, Guo Chi Ma, Mei Fang Ma and Maggie YanYan Wen;

Lorena Sutherland (Alberta Motor Association), for the defendants/appellants, Delainey Lauren Coyne and Karen L. Bader.

This appeal was heard on February 6, 2013, by Bensler, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for judgment on August 9, 2013.

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4 practice notes
  • Leia v Styles,
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • 13 Abril 2023
    ...parties; see also Paradigm Quest Inc v Moser, 2015 ABQB 557, at para 32 [“Paradigm”]; and Ma v Coyne [“Ma”], 2013 ABQB 426. [12]           The standard of review for applying an erroneous legal principle is correc......
  • Leia v Styles,
    • Canada
    • Court of King's Bench of Alberta (Canada)
    • 13 Abril 2023
    ...parties; see also Paradigm Quest Inc v Moser, 2015 ABQB 557, at para 32 [“ Paradigm”]; and Ma v Coyne[“ Ma”], 2013 ABQB 426. 12 The standard of review for applying an erroneous legal principle is correctness. The standard of review of the determination of whether......
  • 2023 ABKB 213,
    • Canada
    • 1 Enero 2023
    ...parties; see also Paradigm Quest Inc v Moser, 2015 ABQB 557, at para 32 [“ Paradigm”]; and Ma v Coyne[“ Ma”], 2013 ABQB 426. 12 The standard of review for applying an erroneous legal principle is correctness. The standard of review of the determination of whether......
  • Ma v. Coyne, [2016] A.R. TBEd. AP.095
    • Canada
    • Court of Appeal (Alberta)
    • 21 Abril 2016
    ...the assessment officer's award reasonable and proper in the circumstances. The Alberta Court of Queen's Bench, in a judgment reported (2013), 568 A.R. 30, held that pre-commencement interpreter's fees were a recoverable disbursement that was within an assessment officer's authority to award......
4 cases
  • Leia v Styles,
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • 13 Abril 2023
    ...parties; see also Paradigm Quest Inc v Moser, 2015 ABQB 557, at para 32 [“Paradigm”]; and Ma v Coyne [“Ma”], 2013 ABQB 426. [12]           The standard of review for applying an erroneous legal principle is correc......
  • 2023 ABKB 213,
    • Canada
    • 1 Enero 2023
    ...parties; see also Paradigm Quest Inc v Moser, 2015 ABQB 557, at para 32 [“ Paradigm”]; and Ma v Coyne[“ Ma”], 2013 ABQB 426. 12 The standard of review for applying an erroneous legal principle is correctness. The standard of review of the determination of whether......
  • Leia v Styles,
    • Canada
    • Court of King's Bench of Alberta (Canada)
    • 13 Abril 2023
    ...parties; see also Paradigm Quest Inc v Moser, 2015 ABQB 557, at para 32 [“ Paradigm”]; and Ma v Coyne[“ Ma”], 2013 ABQB 426. 12 The standard of review for applying an erroneous legal principle is correctness. The standard of review of the determination of whether......
  • Ma v. Coyne, [2016] A.R. TBEd. AP.095
    • Canada
    • Court of Appeal (Alberta)
    • 21 Abril 2016
    ...the assessment officer's award reasonable and proper in the circumstances. The Alberta Court of Queen's Bench, in a judgment reported (2013), 568 A.R. 30, held that pre-commencement interpreter's fees were a recoverable disbursement that was within an assessment officer's authority to award......

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