MacCabe v. Board of Education of Westlock (Roman Catholic Separate) School District No. 110 et al., (1999) 243 A.R. 280 (QB)

• Judge: Johnstone, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 23, 1999
• Citations: (1999), 243 A.R. 280 (QB)

MacCabe v. R.C. Sep. Sch. Bd. (1999), 243 A.R. 280 (QB)

MLB headnote and full text

Temp. Cite: [1999] A.R. TBEd. MY.039

Margaret Anne MacCabe (plaintiff) v. Westlock Roman Catholic Separate School District No. 110, Peter Skitsko and Darcy Romanuik (defendants)

(Action No. 9303-05787)

Indexed As: MacCabe v. Board of Education of Westlock (Roman Catholic Separate) School District No. 110 et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Johnstone, J.

April 23 and September 2, 1999.

Summary:

The plaintiff was rendered an incomplete quadriplegic at age 16 after a failed gymnas­tic manoeuvre in gymnastics class. She sued the principal, school district and gymnastics teacher.

The Alberta Court of Queen's Bench, in a decision reported at 226 A.R. 1, held that the gymnastics teacher was negligent and that there was no contributory negligence on the part of the plaintiff. The court determined numerous issues respecting damages. The defendants appealed and applied for a stay of execution pending the appeal.

The Alberta Court of Queen's Bench granted a partial stay subject to terms and conditions. The court determined issues of costs and disbursements.

Practice - Topic 5854

Judgments and orders - Enforcement of judgments - Stay of - The plaintiff was rendered an incomplete quadriplegic at age 16 after a failed gymnastic manoeuvre in gymnastics class - She sued the principal, school district and gymnastics teacher - The trial judge awarded the plaintiff over $4 million in damages - The defendants appealed and applied for a stay of proceed­ings pending the appeal - The Alberta Court of Queen's Bench granted a partial stay subject to terms and conditions where the defendants met their onus to satisfy the modern "money judgment" test (risks of nonpayment and inability to pay or repay) - The plaintiff could not repay the judg­ment amount, but should not be denied all the fruits of victory - The court held that the defendants had also satisfied the tra­ditional tripartite test (serious issue, ir­reparable harm and balance of con­venience) - See paragraphs 4 to 59.

Practice - Topic 6923

Costs - General principles - Power to award or fix costs - The Alberta Court of Queen's Bench stated that "[a] litigant does not possess a right to costs but merely a hope that the court will exercise its discre­tion to grant the party its costs ... How­ever, that discretion must be exercised judicially, on the basis of rational and sound principles having regard to what is appropriate in all the circumstances of the case." - See paragraph 61.

Practice - Topic 7063

Costs - Party and party costs - Counsel fees - Employment of special or additional counsel - The plaintiff was rendered an incomplete quadriplegic at age 16 after a failed gymnastic manoeuvre in gymnastics class - She sued the principal, school dis­trict and gymnastics teacher - The trial lasted 26.5 days, 27 plaintiff and 12 de­fendant witnesses were called and the issues were numerous and complex - The trial judge awarded the plaintiff over $4 million in damages - The Alberta Court of Queen's Bench allowed the plaintiff's request for second counsel fees under column 6 - See paragraph 179.

Practice - Topic 7063.2

Costs - Party and party costs - Counsel fees - Allowance for goods and services tax - A successful plaintiff requested an award of GST on the taxable fees portion of the Bill of Costs - The Alberta Court of Queen's Bench stated that "[a]lthough the new Schedule 'C' is silent as to the award of GST, it appears that, having not addressed this issue, it leaves this matter open to the court. If the court deems it appropriate to award this amount in order to achieve indemnification, at least in part for the plaintiff, it is at liberty to do so in the exercise of its discretion. This rationale, extracted from the earlier case law, still remains notwithstanding the advent of the 'new' Schedule 'C'." - See paragraph 74.

Practice - Topic 7066

Costs - Party and party costs - Counsel fees - Written argument - A plaintiff was successful at trial - Plaintiff's counsel claimed $200 for his written final argu­ment on the basis that, without it, the case would have been unnecessarily extended - The Alberta Court of Queen's Bench disal­lowed the claim - Counsel made his own choice to provide written final argument; he was not requested to do so - See para­graphs 64 to 68.

Practice - Topic 7084

Costs - Party and party costs - Witness fees and costs of preparation for trial or appeal - Witnesses - Preparation for trial - The plaintiff was rendered an incomplete quadriplegic at age 16 after a failed gym­nastic manoeuvre in gymnastics class - She sued, among others, Romanuik, her gym­nastics teacher - The plaintiff retained Dr. Russell as an expert witness - However, as trial approached it became clear that he was reluctant to testify as an expert witness against Romanuik, his former student - Dr. Russell was qualified as an ordinary wit­ness - The Alberta Court of Queen's Bench allowed Dr. Russell's entire consult­ing fee where he was one of the key and germane witnesses - However, because he testified as an ordinary witness, his dis­bursements for travel expenses and trial attendance were treated as such - See paragraphs 79 to 88.

Practice - Topic 7085

Costs - Party and party costs - Witness fees and costs of preparation for trial or appeal - Expert witness fees - The plaintiff was rendered an incomplete quadriplegic at age 16 after a failed gymnastic manoeuvre in gymnastics class - She sued the princi­pal, school district and gymnastics teacher - The successful plaintiff claimed $16,150 and $15,100 for reports and services for trial preparation by two expert teacher witnesses based on a $100/hour fee - The Alberta Court of Queen's Bench allowed the first expert's fees at $75/hour and the second and less experienced expert's fees at $50/hour - The court considered the valuable family, evening, weekend and holiday time that they gave up; their 1.5 year commitment to the trial process and the case's complexity - The court allowed only the first expert's claim for courtroom attendance - See paragraphs 101 to 116.

Practice - Topic 7085

Costs - Party and party costs - Witness fees and costs of preparation for trial or appeal - Expert witness fees - The plaintiff was rendered an incomplete quadriplegic at age 16 after a failed gymnastic manoeuvre in gymnastics class - She sued the princi­pal, school district and gymnastics teacher - The successful plaintiff claimed $2,000 for the work of Quinney as an initial expert who: (1) attended the videotape demonstration with a number of gymnasts from her class; (2) provided the plaintiff with an evaluation report of the accident; and (3) reviewed some examinations for discovery - Ultimately, Quinney was not called as an expert witness - The Alberta Court of Queen's Bench allowed one-half of the claim - See paragraphs 117 to 122.

Practice - Topic 7110.4

Costs - Party and party costs - Special orders - Increase in scale of costs - Infla­tion - [See Practice - Topic 7115 ].

Practice - Topic 7115

Costs - Party and party costs - Special orders - Increase in scale of costs - Diffi­culty and complexity of proceedings - The plaintiff was rendered an incomplete quadriplegic at age 16 after a failed gym­nastic manoeuvre in gymnastics class - She sued the principal, school district and gymnastics teacher - The trial lasted 26.5 days, 27 plaintiff and 12 defendant witnesses were called and the issues were numerous and complex - The trial judge awarded the plaintiff over $4 million in damages - The Alberta Court of Queen's Bench awarded the plaintiff costs based on three times Column 6 of old Schedule "C" and directed that an inflation factor of 1.5 be applied to Column 6 to reflect inflation - See paragraphs 175 to 178.

Practice - Topic 7131

Costs - Party and party costs - Disburse­ments - General - The Alberta Court of Queen's Bench stated that in determining whether or not an award for disbursements was reasonable the following factors may be considered: "(a) the length of the trial; (b) its complexity; (c) the nature and num­ber of the issues involved in the trial; (d) the degree of contest as to evidentiary matters; (e) the degree of contest as to credibility of witnesses, including pro­fessional expert witnesses; (f) the nature and number of the defenses mounted; (g) the requirement for and use of experts; (h) the use of models, tests and scientific evidence; (i) the nature and amount of damages at issue; (j) the relationship of the expenses claimed as costs to the amounts at issue in damages; (k) any agreement of counsel to share specific expense items." - See paragraph 76.

Practice - Topic 7135

Costs - Party and party costs - Disburse­ments - Telephone expenses - Cellular phone charges - A successful plaintiff's counsel claimed $111.78 for his cellular phone charges to and from the Law Courts Building during the 26.5 day trial - The Alberta Court of Queen's Bench rejected the claim as not reasonable and proper - There were 14 phones (one pay phone) available to counsel in the Court of Queen's Bench section of the Law Courts Building - See paragraphs 142 to 144.

Practice - Topic 7136

Costs - Party and party costs - Disburse­ments - Travelling expenses - [See Prac­tice - Topic 7084 ].

Practice - Topic 7136

Costs - Party and party costs - Disburse­ments - Travelling expenses - A plaintiff was successful at trial - The Alberta Court of Queen's Bench set the costs of the plaintiff's witnesses' hotel expenses at $80 per night plus the appropriate hotel tax and GST - See paragraphs 123 to 126.

Practice - Topic 7136

Costs - Party and party costs - Disburse­ments - Travelling expenses - A plaintiff was successful at trial - The Alberta Court of Queen's Bench allowed an expense of 30 cents per kilometer for all witnesses who used a private vehicle for court at­tendance and claimed kilometer charges - See paragraphs 127 to 130.

Practice - Topic 7137.1

Costs - Party and party costs - Disburse­ments - Medical expense of party's at­tendance - The plaintiff was rendered an incomplete quadriplegic at age 16 after a failed gymnastic manoeuvre in gymnastics class - She sued the principal, school dis­trict and gymnastics teacher - The plaintiff was successful at trial, which lasted 26.5 days - She claimed $1,560.64 for the use of an aide from Olsten Health Services during three trial days on the basis that her daily routine was disrupted - A room was set aside for the plaintiff in which an aide would assist her with her catherization needs and any problems related to winter street conditions - The Alberta Court of Queen's Bench allowed the claim - See paragraphs 140 to 141.

Practice - Topic 7139.1

Costs - Party and party costs - Disburse­ments - Post-judgment enforcement pro­ceedings - The plaintiff was rendered an incomplete quadriplegic at age 16 after a failed gymnastic manoeuvre in gymnastics class - She sued the principal, school dis­trict and gymnastics teacher (Romanuik) - The plaintiff sought recovery for the costs of filing a writ of enforcement against Romanuik - The Alberta Court of Queen's Bench reduced the claim by half - The defendants had not satisfied the plaintiff's request to secure information respecting the defendants' insurance company's abili­ty to pay - On the other hand, the writ was filed against Romanuik, who possessed limited assets, as opposed to the school board - Moreover, plaintiff's counsel did not advise the defendants of his intended actions, as common courtesy would dictate - See paragraphs 159 to 169.

Practice - Topic 7140

Costs - Party and party costs - Disburse­ments - Cost of reports - The plaintiff was rendered an incomplete quadriplegic at age 16 - She sued the defendants for damages and was successful - The plaintiff claimed $2,697.44 for a Preliminary Report pre­pared by the Vocational Consulting Group and $2,480.58 and $500 for Final and Rebuttal Reports - The defendants only became aware of the Preliminary Report during a cross-examination at trial - The Alberta Court of Queen's Bench held that the Preliminary Report's existence should have been disclosed early in the pro­ceedings and further, it was producible under rule 218.1 - The court allowed 25% of the Preliminary Report claim because the Final Report did not incorporate all of it - The court allowed the full claim for the Final and Rebuttal Reports as their cost was reasonable and they were of benefit to the court - See paragraphs 89 to 97.

Practice - Topic 7140

Costs - Party and party costs - Disburse­ments - Cost of reports - The plaintiff was rendered an incomplete quadriplegic at age 16 after a failed gymnastic manoeuvre in gymnastics class - She sued the principal, school district and gymnastics teacher - Prior to the trial, a judge granted an order allowing the plaintiff to inspect and video­tape the gymnasium and equipment that was present when she was injured and re-enact the class - A videotape was produced and then shortened - It did not meet its intended objectives and was never used - The Alberta Court of Queen's Bench held that both parties were partly responsible for the ineffectiveness of the reconstruction activity, but the plaintiff was acting in good faith and authorized by a court order - The court allowed most of the related costs - See paragraphs 131 to 139.

Practice - Topic 7140

Costs - Party and party costs - Disburse­ments - Cost of reports - [See second Practice - Topic 7085 ].

Practice - Topic 7146.1

Costs - Party and party costs - Disburse­ments - Inflation - The Alberta Court of Queen's Bench refused to award an adjust­ment for inflation on disbursements - See paragraphs 150 to 155.

Practice - Topic 7150.3

Costs - Party and party costs - Disburse­ments - Faxes - The Alberta Court of Queen's Bench held that the use of fac­simile services had become an integral part of practicing law, but that the use of de­livery services in place of ordinary mail could still be categorized as an alternative service used in the place of ordinary mail because of exceptional circumstances - See paragraphs 145 to 149.

Practice - Topic 7150.7

Costs - Party and party costs - Disburse­ments - Delivery and service charges - [See Practice - Topic 7150.3 ].

Cases Noticed:

Blacklaws et al. v. 470433 Alberta Ltd. (1998), 216 A.R. 393; 175 W.A.C. 393 (C.A.), refd to. [para. 5].

Blacklaws v. Morrow - see Blacklaws et al. v. 470433 Alberta Ltd.

Canada (Attorney General) v. Crane (Eileen) Professional Corp., [1992] A.J. No. 137 (C.A.), refd to. [para. 6].

Alberta Mortgage and Housing Corp. v. Edson Manor Properties Ltd. et al. (1992), 127 A.R. 138; 20 W.A.C. 138 (C.A.), refd to. [para. 6].

Wilkinson v. Eaton (T.) Co. (1992), 135 A.R. 217; 33 W.A.C. 217 (C.A.), refd to. [para. 6].

Acheson v. Dory (1993), 149 A.R. 71; 63 W.A.C. 71 (C.A.), refd to. [para. 6].

Alberta (Minister of Consumer and Cor­porate Affairs) et al. v. Bennett et al. (1992), 131 A.R. 184; 25 W.A.C. 184 (C.A.), refd to. [para. 7].

Edmonton (City) v. Westinghouse Canada Inc. et al. (1996), 187 A.R. 153; 127 W.A.C. 153; 42 Alta. L.R.(3d) 356 (C.A.), refd to. [para. 8].

Metropolitan Stores (MTS) Ltd. v. Mani­toba Food and Commercial Workers, Local 832 and Labour Board (Man.), [1987] 1 S.C.R. 110; 73 N.R. 341; 46 Man.R.(2d) 241; 18 C.P.C.(2d) 273; 38 D.L.R.(4th) 321; 25 Admin. L.R. 20, refd to. [para. 10].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241; 111 D.L.R.(4th) 385; 54 C.P.R.(3d) 114, refd to. [para. 12].

155569 Canada Ltd. v. 248524 Alberta Ltd. et al. (1995), 178 A.R. 154; 110 W.A.C. 154; 37 Alta. L.R.(3d) 58 (C.A.), refd to. [para. 13].

Buchanan v. Wassef (1997), 202 A.R. 207 (Q.B.), refd to. [para. 14].

Hejnar v. Hejnar, [1993] A.J. No. 616 (C.A.), refd to. [para. 16].

Oxford Equity Inc. v. Lewyk et al., [1995] A.J. No. 936 (C.A.), refd to. [para. 16].

MacPhail et al. v. Desrosiers et al. (1998), 165 N.S.R.(2d) 32; 527 A.P.R. 32 (C.A.), refd to. [para. 16].

Jager Industries Inc. v. Leduc No. 25 (County) (1997), 206 A.R. 303; 156 W.A.C. 303 (C.A.), refd to. [para. 45].

Laube v. Juchli (1997), 209 A.R. 67; 160 W.A.C. 67 (C.A.), refd to. [para. 47].

S.E. v. Law Society of Alberta, [1992] A.J. No. 838 (C.A.), refd to. [para. 54].

Bruneau v. Bruneau, [1993] A.J. No. 210 (Q.B.), refd to. [para. 55].

Armstrong et al. v. Athabasca No. 1 (County) (1990), 120 A.R. 285; 8 W.A.C. 285 (C.A.), refd to. [para. 57].

Canadian Imperial Bank of Commerce v. 882432 N.W.T. Ltd., [1994] N.W.T.J. No. 2 (C.A.), refd to. [para. 57].

Lalli v. Chawla (1997), 203 A.R. 27; 53 Alta. L.R.(3d) 121 (Q.B.), refd to. [para. 61].

Reese et al. v. Alberta (Minister of Forestry, Lands and Wildlife) et al. (1992), 133 A.R. 127 (Q.B.), refd to. [para. 61].

V.A.H. v. Lynch et al. (1998), 238 A.R. 201 (Q.B.), refd to. [para. 61].

Morrison Petroleums Ltd. v. Phoenix Canada Oil Co. et al. (1998), 236 A.R. 95 (Q.B.), dist. [para. 66].

Nova, An Alberta Corp. v. Guelph En­gineering Co. (1988), 89 A.R. 363; 60 Alta. L.R.(2d) 366 (Q.B.), refd to. [para. 67].

Ligate v. Abick (1991), 5 O.R.(3d) 332 (Gen. Div.), refd to. [para. 70].

Michel v. Lafrentz et al. (1997), 215 A.R. 214 (Q.B.), refd to. [para. 71].

Sabol v. Rousseau (1997), 207 A.R. 399 (Q.B.), refd to. [para. 71].

Mackie v. Wolfe (1994), 159 A.R. 148 (Q.B.), refd to. [para. 71].

Ropchan v. Duncan (1992), 134 A.R. 224 (Q.B.), refd to. [para. 72].

Simpson v. Bender et al. (1996), 180 A.R. 220; 37 Alta. L.R.(3d) 191 (Q.B.), refd to. [para. 73].

Sidorsky et al. v. CFCN Communications Ltd. et al. (1995), 167 A.R. 181; 27 Alta. L.R.(3d) 296 (Q.B.), refd to. [para. 73].

Westco Storage Ltd. et al. v. Inter-City Gas Utilities Ltd. et al., [1988] 4 W.W.R. 396; 53 Man.R.(2d) 130 (Q.B.), refd to. [para. 76].

Miller (Ed) Sales and Rentals Ltd. v. Caterpillar Tractor Co. et al. (1994), 170 A.R. 341 (Q.B.), refd to. [para. 76].

Petrogas Processing Ltd. v. Westcoast Transmission Co. (1990), 105 A.R. 384 (Q.B.), appld. [para. 77].

Thornton v. Board of Education of School District No. 57 (Prince George) et al., [1975] 3 W.W.R. 622 (B.C.S.C.), varied [1976] 5 W.W.R. 240 (B.C.C.A.), varied [1978] 1 W.W.R. 607; 19 N.R. 552 (S.C.C.), refd to. [para. 81].

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. 87].

Anderson et al. v. Ball et al. (1997), 214 A.R. 332 (Q.B.), agreed with [para. 108].

Logozar v. Golder (1992), 136 A.R. 363 (Q.B.), refd to. [para. 128].

St. Pierre v. Renick, [1998] A.R. Uned. 599 (Q.B.), refd to. [para. 128].

Gainers Inc. v. Pocklington Holdings Inc. et al. (1996), 182 A.R. 78 (Q.B.), refd to. [para. 147].

Dornan Petroleum Inc. et al. v. Petro-Canada et al. (1997), 199 A.R. 334 (Q.B.), refd to. [para. 147].

C.R. et al. v. Morana et al. (1997), 53 O.T.C. 168; 37 O.R.(3d) 342 (Gen. Div.), dist. [para. 152].

Watkins v. Olafson et al., [1989] 2 S.C.R. 750; 100 N.R. 161; 61 Man.R.(2d) 81; [1989] 6 W.W.R. 481; 61 D.L.R.(4th) 577; 39 B.C.L.R.(2d) 294; 50 C.C.L.T. 101, refd to. [para. 153].

Andrews v. Grand & Toy (Alberta) Ltd. (1974), 54 D.L.R.(3d) 85 (Alta. T.D.), refd to. [para. 162].

Authors and Works Noticed:

Christensen, J., Party and Party Costs (1998), p. 2 [para. 125].

Christensen, J., Party and Party Costs (1999 Update), p. 1 [para. 61].

Counsel:

Ronald G. Cummings, Q.C., and Beverly J. Larbalestier, for the plaintiff;

Eleanor Olszewski and Sandra L. Corbett, for the defendants.

This application was heard by Johnstone, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on April 23, 1999 and an addendum to reasons for judgment on September 2, 1999.