Millott Estate et al. v. Reinhard et al., 2002 ABQB 998

• Judge: Fraser, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 20, 2002
• Citations: 2002 ABQB 998;(2002), 322 A.R. 307 (QB)

Millott Estate v. Reinhard (2002), 322 A.R. 307 (QB)

MLB headnote and full text

Temp. Cite: [2002] A.R. TBEd. DE.032

Lauretta Millott as Administratrix of the Estate of James Ian Millott, the Estate of James Ian Millott, Lauretta Millott, Steven Millott, and Samantha Millott, a minor by her next friend Lauretta Millott (plaintiffs) v. Carl Ivar Reinhard, Williams Moving & Storage (Cranbrook) Ltd., Reinhard Moving & Storage Ltd. and Univan Leasing Limited (defendants)

(Action No. 9901-15453; 2002 ABQB 998)

Indexed As: Millott Estate et al. v. Reinhard et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Fraser, J.

November 20, 2002.

Summary:

Millott was killed when the motorcycle he was riding collided with a tractor-trailer. His estate, wife and children sued the tractor-trailer driver and the owners of the tractor and trailer.

The Alberta Court of Queen's Bench, in a decision reported at 306 A.R. 1, held that the defendant driver's negligence was the sole cause of the accident, Millott was not contributorily negligent and the owner defendants were jointly and severally liable for the damages on the basis of vicarious liability. The court assessed damages. Further issues respecting damages arose.

The Alberta Court of Queen's Bench, in a decision reported at 322 A.R. 174, determined the issues accordingly. The plaintiffs and defendants brought applications respecting costs and other unrelated issues.

The Alberta Court of Queen's Bench determined the issues accordingly.

Barristers and Solicitors - Topic 3324

Compensation - Disbursements - Photocopies - Successful plaintiffs claimed $14,626.92 for photocopy expenses - The Alberta Court of Queen's Bench allowed $2,500 for photocopies - Many of the photocopies were not allowable as a taxable cost under rule 600(1)(a)(iv) (expenses for the preparation of plans, models, or copies of documents) - Nor were they recoverable under rule 600(1)(a)(i) as a charge which a party had become liable to pay its lawyer - Such a charge could not be claimed as a taxable disbursement solely because it had been incurred for the client's benefit - That was because the contract between lawyer and client which obliged the client to indemnify the lawyer against expense incurred by the latter was subject to the implied term that the expense involved must be proper (i.e., authorized by the Rules) - See paragraphs 75 to 76.

Practice - Topic 3666

Evidence - Affidavits - Striking out - Irrelevant or improper matters - The plaintiffs were successful in a fatal injury action - Applications were brought respecting costs - The defendants applied to strike a paragraph in the plaintiffs' affidavit referring to the defendants' refusal to participate in mediation - The Alberta Court of Queen's Bench struck the paragraph - There was no obligation on a party to participate in mediation - The defendants' failure to participate was, therefore, irrelevant to matters at issue and could not be considered by the court in assessing costs - See paragraphs 7 to 8.

Practice - Topic 5259.2

Trials - General - Mediation - When required - [See Practice - Topic 3666 ].

Practice - Topic 7082

Costs - Party and party costs - Witness fees and costs of preparation for trial or appeal - Preparation for trial - Successful plaintiffs sought an increase to $50,000 in the tariff item of $8,000 for trial preparation because of a complicated fact scenario, complex legal issues, and the wide variety of over 40 expert and other witnesses needed to give evidence at trial, which lasted more than 35 days - The Alberta Court of Queen's Bench held that the plaintiffs were partially remunerated for the extra time in the award of fees for trial time - However additional preparation was necessary - Therefore, the court doubled the normal tariff item to $16,000 -The court stated that taxable fees and costs were not intended to be a complete indemnity in terms of either an hourly rate or the time required to do a job - See paragraphs 49 to 52.

Practice - Topic 7085

Costs - Party and party costs - Witness fees and costs of preparation for trial or appeal - Expert witness fees - The plaintiffs' husband/father was killed when his motorcycle collided with a tractor trailer - An accident reconstructionist supervised two separate re-enactments - The Alberta Court of Queen's Bench held that the costs of both re-enactments were reasonable and necessary, but the costs incurred in respect of the first re-enactment were not recoverable because they were incurred prior to trial to determine if a case for liability could be made - See paragraphs 86 to 92.

Practice - Topic 7109

Costs - Party and party costs - Special orders - Discretion to exceed scale of costs - Successful plaintiffs sought enhanced costs on the basis of a lengthy trial and a novel issue - The Alberta Court of Queen's Bench approached any overall enhancement of taxable fees with caution - There was a real possibility that the taxable costs awarded to the plaintiffs would, when the fees were doubled as a result of a settlement offer made by the plaintiffs before trial, exceed their liability for fees on a solicitor and client basis - This concern was of overriding importance - However, that did not prevent the increase of fees for individual items such as preparation for trial or the preparation of briefs - See paragraphs 56 to 58.

Practice - Topic 7134

Costs - Party and party costs - Disbursements - Photocopies - Successful plaintiffs claimed photocopy expenses of $24,626.92 calculated at 28 cents per page - The Alberta Court of Queen's Bench allowed photocopy costs of $2,500 - All photocopying done on the file, including many drafts on the same documents, was charged to the file - The court stated that the cost of producing copies of documents required for use in the trial, including expert reports, exhibits, and arguments and other documents which must be served, was a cost which could be passed on - However, the cost of repeated photocopying of drafts of documents prepared for use in the action such as arguments, or of other miscellaneous documents such as letters, was not - See paragraphs 71 to 80.

Practice - Topic 7134

Costs - Party and party costs - Disbursements - Photocopies - [See Barristers and Solicitors - Topic 3324 ].

Practice - Topic 7134

Costs - Party and party costs - Disbursements - Photocopies - The Alberta Court of Queen's Bench held that the reference to "copies of documents" in rule 600(1)(a)(iv) was to final copies of existing documents - It did not cover copies of drafts - Nor did it cover the preparation of copies of pleadings, notices of motion, affidavits, orders, etc., which was covered by rule 605(3) and could not be included if the copy in question was a copy of a document used in completing some step already covered by another item included in the Bill of Costs - See paragraph 74.

Practice - Topic 7146

Costs - Party and party costs - Disbursements - Trial transcripts - Successful plaintiffs sought the costs of transcripts of the trial - The Alberta Court of Queen's Bench allowed the costs of the transcripts - Both parties used them in preparing arguments -Further, the adoption by the court of a new recording system for evidence made it uncertain that accurate transcripts could be obtained later if required - See paragraphs 66 to 67.

Practice - Topic 7150.4

Costs - Party and party costs - Disbursements - Items not recoverable as disbursements - [See Practice - Topic 7085 ].

Practice - Topic 7150.7

Costs - Party and party costs - Disbursements - Delivery and service charges - Successful plaintiffs sought process server expenses of $1,461.60 - The Alberta Court of Queen's Bench allowed $700 for these expenses - The invoices provided by the plaintiffs indicated that the majority of personal service was done on a "priority rush" basis or a "rush" basis - The need for the additional "rush" expenses was not explained or proven to be reasonably necessary - See paragraphs 81 to 83.

Practice - Topic 7245.4

Costs - Party and party costs - Offers to settle - Time of offer - The Alberta Court of Queen's Bench held that "Rule 170 does not require an offer to be open for 45 days, but only that it be made before the commencement of trial and be open for acceptance until the commencement of trial." - See paragraph 23.

Practice - Topic 7245.4

Costs - Party and party costs - Offers to settle - Time of offer - An offer to settle was delivered to defendants in the morning of the day the trial was to start, but before 10 a.m. when court was to convene - An adjournment was granted to permit consideration of the offer - The defendants refused the offer and the trial began at 2 p.m. - The plaintiffs recovered a judgment greater than the offer - The Alberta Court of Queen's Bench held that the shortage of time to consider the offer was not a special reason to deny the plaintiffs double costs under rule 174(2) - The idea of settlement was well canvassed before trial - The fact that the case involved a novel issue was also not a special reason - See paragraphs 21 to 32.

Practice - Topic 7246

Costs - Party and party costs - Offers to settle - Whether judgment equal to or more favourable than offer - An offer to settle provided for payment to the plaintiffs of $425,000 for all damages, interest, and "... party-party costs (fees from the Rules of Court and disbursements) to be either agreed or, failing agreement, taxed by the taxing officer with specific leave reserved and given to the plaintiffs to seek out advice and rulings from Court of Queen's Bench Justice, [sic] as they in their sole unfettered discretion may so determine, on any or all issues concerning costs (meaning fees and disbursements)" - The Alberta Court of Queen's Bench held that the offer lacked the degree of certainty and exactness required for double costs - See paragraphs 11 to 18.

Practice - Topic 7246

Costs - Party and party costs - Offers to settle - Whether judgment equal to or more favourable than offer - Plaintiffs sued for damages arising out of the death of their husband/father - The plaintiffs made an offer to settle on the basis that the deceased was 20% liable or contributorily negligent or both - The offer further stipulated that if the defendants did not obtain a finding of contributory negligence or liability or both greater than 20%, the judge or Court of Appeal would award the plaintiffs double costs for all steps respecting that issue without prejudice to the plaintiffs' right to argue for greater costs - The Alberta Court of Queen's Bench held that the plaintiffs' reservation of the right to argue for greater costs defeated their right to double costs on the basis of the offer - See paragraphs 19 to 20.

Practice - Topic 7364

Costs - Costs of interlocutory proceedings - Costs of motions or applications - Successful plaintiffs sought approval of two $750 fees for two "special applications" made during the course of the trial - The defendants sought the same fees on the basis that they were successful in both applications - The Alberta Court of Queen's Bench declined to award costs for the applications because they were dealt with as part of the costs of the trial (costs in the cause) - See paragraphs 44 to 48.

Cases Noticed:

Bank of Nova Scotia v. R. (1983), 24 Sask.R. 312 (Q.B.), appld. [para. 7].

Bank of Nova Scotia v. R. (1983), 24 Sask.R. 308 (C.A.), refd to. [para. 7].

Kirkeby v. Waddell (1996), 183 A.R. 350 (Q.B.), revd. (1998), 228 A.R. 113; 188 W.A.C. 113 (C.A.), refd to. [para. 17].

Laframboise v. Billett (1991), 81 Alta. L.R.(2d) 285 (Q.B.), folld. [para. 17].

Laframboise v. Billett (1992), 5 Alta. L.R.(3d) 394 (C.A.), refd to. [para. 17].

Madge v. Meyer et al. (2000), 259 A.R. 351; 81 Alta. L.R.(2d) 285 (Q.B.), refd to. [para. 18].

Garand v. Mutual of Omaha Insurance Co. et al. (2001), 297 A.R. 286 (Q.B.), refd to. [para. 18].

Wenden v. Trikha et al. (1992), 124 A.R. 1 (Q.B.), refd to. [para. 23].

Larouche v. Shaw, [1981] A.J. No. 544 (C.A.), folld. [para. 26].

Brown Estate v. Young (1990), 107 A.R. 134 (C.A.), refd to. [para. 26].

Jando v. Kung (1995), 164 A.R. 237 (Q.B.), refd to. [para. 26].

Reid v. Stein et al. (1999), 253 A.R. 90 (Q.B.), refd to. [para. 31].

Stout Estate et al. v. Golinowski Estate et al. (2002), 299 A.R. 13; 266 W.A.C. 13 (C.A.), refd to. [para. 42].

Pharand Ski Corp. v. Alberta (1991), 122 A.R. 395 (Q.B.), refd to. [para. 56].

Petrogas Processing Ltd. v. Westcoast Transmission Co., [1990] 4 W.W.R. 461; 105 A.R. 384 (Q.B.), refd to. [para. 56].

Shillingford v. Dalbridge Group Inc. et al. (2000), 268 A.R. 324 (Q.B.), refd to. [para. 58].

S.G.H. v. Gorsline (2001), 292 A.R. 329 (Q.B.), refd to. [para. 67].

Reese et al. v. Alberta (Minister of Forestry, Lands and Wildlife) et al. (1992), 133 A.R. 127 (Q.B.), refd to. [para. 67].

Sidorsky et al. v. CFCN Communications Ltd. et al. (1995), 167 A.R. 181 (Q.B.), refd to. [para. 67].

Nova, An Alberta Corp. v. Guelph Engineering Co. (1988), 89 A.R. 363 (Q.B.), refd to. [para. 67].

Ukrainian (Edmonton) Credit Union Ltd. v. 258753 Alberta Ltd., Gourdine and Olsen (1984), 60 A.R. 148 (Q.B.), refd to. [para. 74].

V.A.H. v. Lynch et al. (2001), 277 A.R. 104; 242 W.A.C. 104 (C.A.), refd to. [para. 79].

Dechant v. Law Society of Alberta (2001), 277 A.R. 333; 242 W.A.C. 333 (C.A.), refd to. [para. 79].

Kha v. Salhab (2001), 282 A.R. 324 (Q.B.), folld. [para. 91].

Bow Island (Municipal District) v. Wortz, [1921] 2 W.W.R. 153 (Alta. C.A.), refd to. [para. 91].

Statutes Noticed:

Rules of Court (Alta.), rule 170 [para. 23]; rule 174(2) [para. 12]; rule 600(1)(a)(iv) [para. 73]; rule 600(1)(a)(i) [para. 75].

Counsel:

M.B. Warren and N.C. Mayer, for the plaintiff;

M.J. Hokanson, for the defendant.

These applications were heard by Fraser, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following decision on November 20, 2002.