Meehan et al. v. Holt, 2011 ABQB 110

• Judge: Sullivan, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 20, 2010
• Citations: 2011 ABQB 110;(2011), 506 A.R. 208 (QB)

Meehan v. Holt (2011), 506 A.R. 208 (QB)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. MR.118

Ronald R. Meehan and Debra L. Hogan (plaintiffs) v. Harold R. Holt and Kristen M. Holt (defendants)

(0001 11307; 2011 ABQB 110)

Indexed As: Meehan et al. v. Holt

Alberta Court of Queen's Bench

Judicial District of Calgary

Sullivan, J.

February 22, 2011.

Summary:

The parties were involved in a minor impact motor vehicle accident. Meehan's vehicle, in which Hogan was a front seat passenger, struck Holt's vehicle. Meehan settled his claim. Hogan's injuries were "non impact". Liability was admitted. The only issues were causation and damages. The case took 11 years to get to trial.

The Alberta Court of Queen's Bench, in a decision reported at 485 A.R. 1, granted Hogan a global damage award of $252,835.14. The parties were unable to agree on the issues of pre-judgment interest and disbursements, and sought direction.

The Alberta Court of Queen's Bench awarded Hogan pre-judgment interest only for seven years. As well, the court reduced the disbursements for two expert fees.

Interest - Topic 5146

Interest as damages (prejudgment interest) - Torts - Delay - Effect of - This personal injury matter had taken 11 years to get to trial - The only issues were causation and damages - The Alberta Court of Queen's Bench awarded the plaintiff pre-judgment interest only for seven years - The Judgment Interest Act (s. 2(3)) gave the court the discretion to reduce the pre-judgment interest where the circumstances of the case or the conduct of the action merited a reduction - There was an unnecessary delay that was attributable to the plaintiff - The injuries were relatively minor - The only difficulty arose due to the plaintiff's pre-existing degenerative conditions - "A matter such as this should take only 6 years to get to trial" - Giving the plaintiff an additional year due to delays caused by the defendant brought it up to seven years - Such a time frame "is stretching the limits of reasonableness" - There was an onus on the plaintiff to move the action forward, and many mechanisms available to the plaintiff to do so - "Unnecessary delay drives up costs, and impacts on access to justice" - See paragraphs 22 and 23.

Practice - Topic 6923.1

Costs - General principles - What rules applicable - Rule 15.2(1) of the Alberta Rules of Court, 2010 (the "new Rules"), directed that unless an enactment or other rule provided otherwise, the new Rules applied to every existing proceeding - This proceeding was commenced but judgment on costs had not been issued before November 1, 2010, when the new Rules came into effect - The parties argued this costs matter under the former Rules, on October 20, 2010 - Rule 15.12 provided that "[w]here these rules impose a new test, provide new criteria or provide an additional ground for making an application in an existing proceeding, these rules apply in respect of the application if the application was made but has not been heard prior to the coming into force of these rules" - The Alberta Court of Queen's Bench stated that "[w]ere I to find that a difference arose between the new and former Rules that was relevant to my decision and that created a 'difficulty, injustice or impossibility', the operation of Rule 15.6 would allow me to substitute one or more of the former Rules for the new Rules ... However, I have not found that a difficulty or injustice arises here as between the former Rules and the new Rules, and accordingly I consider the matter under both sets of Rules" - See paragraphs 13 and 14.

Practice - Topic 7141

Costs - Party and party costs - Disbursements - Cost of expert advice - The Alberta Court of Queen's Bench, in deciding the reasonableness of disbursements for expert fees, stated that "[a]n expert who provides a report that enters into irrelevant or unnecessary analysis not only does not assist the Court, but in fact makes the Court's task more difficult ... This court faces the problem of increasing costs, and in this case, costs that are greater than the amounts awarded at trial. To combat this problem, the Court must hold experts to a higher standard ... The duty of the expert to the court must include a duty to limit analysis and report content to what is reasonable in the circumstances. The alternative, doing unnecessary work on the assumption that the losing side will pay, should be strongly discouraged. Higher costs of litigation impact access to justice" - See paragraph 37.

Practice - Topic 7141

Costs - Party and party costs - Disbursements - Cost of expert advice - This was a "relatively straightforward" personal injury matter where liability was admitted - The trial judge granted the plaintiff a global damage award of $252,835.14 - The plaintiff now sought a total of $247,372.88 in costs and disbursements - The defendants took issue with some of the plaintiff's disbursements for experts - Brown provided evidence regarding the plaintiff's loss of income - The trial judge largely rejected her evidence, and preferred that of Williams, the defendants' expert - The plaintiff claimed approximately $53,000 in disbursements for Brown - The bill for Williams was approximately $11,500 - Brennan and Mark, both experts in functional capacity evaluation, assessed the plaintiff - Brennan helped counsel with trial preparation - The Alberta Court of Queen's Bench found that the disbursements for Brown and Brennan were unreasonable - Brown's report was based on an approach that was only minimally useful to the court - Further, it was clearly "overkill" - William's bill reflected a reasonable cost; the court awarded the plaintiffs the equivalent amount for Brown - The court disallowed entirely Brennan's fees - There was no reason why two functional assessments were necessary - The plaintiff had been awarded costs for second counsel - Further, the amounts charged by Brennan for trial preparation were unreasonable - See paragraphs 38 to 41.

Statutes - Topic 6905.1

Operation and effect - Commencement, duration and repeal - Repeal - Substitution for repealed statute - Transitional provisions - [See Practice - Topic 6923.1 ].

Cases Noticed:

Broers v. Real Estate Council of Alberta et al. (2010), 498 A.R. 190; 2010 ABQB 774, refd to. [para. 13].

Rayani v. Yule & Co. (Hong Kong) Ltd. (1996), 178 A.R. 231; 110 W.A.C. 231 (C.A.), consd. [para. 16].

Pedherney v. Jensen et al., [2008] A.R. Uned. 487; 2008 ABQB 345, affd. (2011), 499 A.R. 216; 514 W.A.C. 216; 2011 ABCA 9, consd. [para. 17].

Begro Construction Ltd. v. St. Mary River Irrigation District et al. (1994), 154 A.R. 1 (Q.B.), consd. [para. 18].

Pettipas v. Klingbeil et al. (2000), 276 A.R. 24; 2000 ABQB 988, consd. [para. 19].

Hilliard v. Grabinski et al. (1998), 221 A.R. 201; 1998 ABQB 427, consd. [para. 20].

Gilchrist v. Oatway (1995), 168 A.R. 56 (Q.B.), affd. (1997), 209 A.R. 225; 160 W.A.C. 225 (C.A.), consd. [para. 20].

Martorana v. Lee (1994), 150 A.R. 167 (Q.B.), refd to. [para. 20].

Russell v. Turcot, [2009] A.R. Uned. 184; 2009 ABQB 19, refd to. [para. 21].

Prosser v. 20 Vic Management Inc. et al., 2009 ABQB 177, affd. (2010), 474 A.R. 288; 479 W.A.C. 288; 2010 ABCA 57, refd to. [para. 21].

Marchand v. Brar et al., [2008] A.R. Uned. 501; 2008 ABQB 470, refd. to. [para. 21].

O'Scolai et al. v. Antrajenda (2008), 447 A.R. 114; 2008 ABQB 257, refd to. [para. 21].

Imbir v. Barron et al., [2006] A.R. Uned. 364; 2006 ABQB 419, refd to. [para. 21].

MacCabe v. Board of Education of Westlock (Roman Catholic Separate) School District No. 110 et al. (1999), 243 A.R. 280; 1999 ABQB 666, consd. [para. 24].

Viridian Inc. v. Dresser Canada Inc. et al., [1998] A.R. Uned. 579; 1998 ABQB 687, consd. [para. 29]

Viridian v. Dresser Canada Inc. et al., [1998] A.R. Uned. 578; 1998 ABCA 275, consd. [para. 29].

Petrogas Processing Ltd. v. Westcoast Transmission Co. (1990), 105 A.R. 384 (Q.B.), consd. [para. 30].

S.F.P. v. MacDonald et al. (1999), 242 A.R. 134; 1999 ABQB 322, refd to. [para. 31].

Edmonton Regional Airports Authority v. North West Geomatics Ltd. (2003), 332 A.R. 299; 2003 ABQB 280, refd to. [para. 31].

Anderson et al. v. Ball et al. (1997), 214 A.R. 332 (Q.B.), refd to. [para. 31].

Lee v. Lepage et al., [2010] A.R. Uned. 914; 2010 ABQB 829, refd to. [para. 33].

Copithorne et al. v. Transalta Utilities Corp., [2007] A.R. Uned. 129; 2007 ABQB 82, consd. [para. 34].

Proctor et al. v. Johnson, [2004] A.R. Uned. 236; 2004 ABQB 87, refd to. [para. 34].

Byron v. Larson, [2003] A.R. Uned. 234; 2003 ABQB 347, revd. (2004), 357 A.R. 201; 334 W.A.C. 201; 2004 ABCA 398, consd. [para. 35].

Byron v. Cabrera - see Byron v. Larson.

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 36].

Patterson v. Hryciuk et al., [2005] A.R. Uned. 122; 2005 ABQB 136, refd to. [para. 45].

Statutes Noticed:

Court of Queen's Bench Act, R.S.A. 2000, c. C-31, sect. 21 [para. 24].

Judgment Interest Act, R.S.A. 2000, c. J-1, sect. 2(1), sect. 2(3) [para. 15].

Rules of Court (Alta.), rule 601(1) [para. 27].

Rules of Court (Alta.), 2010, rule 5.1 [para. 13]; rule 10.31(1) [para. 25]; rule 10.31(2) [para. 26]; rule 10.33 [para. 28]; rule 15.2(1) [para. 13]; rule 15.6, rule 15.12 [para. 14].

Counsel:

T. Thomas Mudry, for the defendants/applicants;

Simon J. Muller, for the plaintiffs/respondents.

This costs matter was heard on October 20, 2010, before Sullivan, J., of the Alberta Court of Queen's Bench, who delivered the following judgment and reasons for judgment, dated at Calgary, Alberta, on February 22, 2011.