Moser v. Derksen, (2003) 335 A.R. 204 (QB)

• Judge: Rowbotham, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 29, 2003
• Citations: (2003), 335 A.R. 204 (QB);2003 ABQB 679

Moser v. Derksen (2003), 335 A.R. 204 (QB)

MLB headnote and full text

Temp. Cite: [2003] A.R. TBEd. MR.079

Verna Moser and Joanna Moser (plaintiffs) v. Brenda Norma Derksen (defendant)

(Action No. 9701-03129)

Verna Moser (plaintiff) v. Nancy Luu and Jennifer Luu (defendants)

(Action No. 9701-11294)

Joanna Moser, by her next friend Verna Moser and Verna Moser (plaintiffs) v. Ross Kaplan, Ross Kaplan Professional Corporation, Peter Forrester, and MacLeod & Company (defendants)

(Action No. 0001-05916)

(2003 ABQB 679)

Indexed As: Moser v. Derksen

Alberta Court of Queen's Bench

Judicial District of Calgary

Rowbotham, J.

February 25, 2003.

Summary:

The plaintiff commenced three actions for damages for personal injuries arising from three separate motor vehicle accidents. The actions were consolidated.

The Alberta Court of Queen's Bench, in a decision reported at 321 A.R. 56, found that the defendant Derksen was responsible for 40% of the plaintiff's injuries, that the Luu defendants were responsible for 30% of the plaintiff's injuries and that the Kaplan defendants were responsible for 30% of the plaintiff's injuries. The 30% attributable to the Kaplan defendants was reduced by 50% where the plaintiff had accepted one half of the responsibility for that accident. Applications were brought to settle the matter of costs.

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

Practice - Topic 6103

Judgments and orders - Amendment, rescission and variation of judgments and orders - Slip rule - Correction of errors or omissions - The plaintiff was awarded damages for loss of income for an 18 month period based on her pre-accident employment income - The plaintiff now asked that the court include a further amount for benefits of 8% of her salary - The plaintiff relied on rule 399 which provided that "clerical mistakes in judgments or orders, or errors therein arising from any accident, slip or omission may at any time be corrected by the court on motion" - The judgment roll had not been entered - The Alberta Court of Queen's Bench stated that its intention was to award the plaintiff damages which represented her loss of income over an 18 month period and that the amount should have included an amount for benefits - The court viewed this as an omission in the calculation and awarded the plaintiff a further amount for benefits based on 8% of her salary - See paragraphs 10 to 14.

Practice - Topic 7062

Costs - Party and party costs - Counsel fees - Entitlement - The plaintiff commenced three actions for damages for personal injuries arising from three separate motor vehicle accidents - The actions were consolidated - As the amount of the plaintiff's judgment attributable to the Luu defendants was less than an offer to settle made by those defendants, the plaintiff was responsible for their costs from the date of the offer to the conclusion of the trial - The plaintiff argued that the defendants should not receive a full counsel fee as they divided the work of trial - The plaintiff suggested that each defendant should be entitled to only one third of trial costs - The Alberta Court of Queen's Bench stated that "all counsel attended every day of trial. While the court appreciated the time saved by dividing some of the labour, this is not a reason to allocate costs on less than a full basis. The defendants, Luu shall receive their full counsel costs for the trial" - See paragraphs 19 to 20.

Practice - Topic 7063

Costs - Party and party costs - Counsel fees - Special or additional counsel - The plaintiff commenced three actions for damages for personal injuries arising from three separate motor vehicle accidents - The actions were consolidated - Counsel for one set of defendants (the Luu defendants) was assisted by a more junior counsel - None of the other lawyers had second counsel - The Alberta Court of Queen's Bench held that "in this case with three counsel dividing much of the trial preparation and witness examination, I am not prepared to grant costs of second counsel for the Luu defendants" - See paragraphs 21 to 23.

Practice - Topic 7069

Costs - Party and party costs - Counsel fees - Apportionment of - [See Practice - Topic 7062 ].

Practice - Topic 7138

Costs - Party and party costs - Disbursements - Computer research - The Alberta Court of Queen's Bench disallowed disbursements claimed for contract research and Quicklaw computer searches - The court stated that "research has been held to be a part of what is intended to be included in party and party costs. It is a lawyer's function whether counsel does it himself or retains another lawyer to do the research for him. Accordingly, it is not properly claimed as a disbursement. I take a similar view with respect to the disbursement claimed for Quicklaw" - The court noted that computer searching was akin to legal research or other work of the lawyer - See paragraphs 43 to 46.

Practice - Topic 7150.4

Costs - Party and party costs - Disbursements - Items not recoverable as disbursements - [See Practice - Topic 7138 ].

Practice - Topic 7241

Costs - Party and party costs - Offers to settle - General (incl. what constitutes) - Defendants made a joint offer to settle for damages and interest in the amount of $175,000 and "party and party taxable costs and taxable disbursements attributable only to actions No. 9701-03129 and 9701-11294, to which these defendants are party" - The plaintiff argued that the wording of the offer was too imprecise and it was incapable of acceptance - In particular, the plaintiff argued that because costs were to be taxed, the offer was uncertain - The Alberta Court of Queen's Bench held that the offer was sufficiently precise in its terms and was a valid offer - See paragraphs 36 to 37.

Practice - Topic 7245.4

Costs - Party and party costs - Offers to settle - Time of offer - Defendants served an offer to settle three days before the commencement of the trial - The plaintiff argued that this was not a valid offer because it was not left open for a sufficient amount of time prior to the commencement of the trial - The Alberta Court of Queen's Bench rejected the argument - The offer met the requirements of rule 169 where it was left open until the commencement of the trial - The timing of the offer did not create a special reason so as to disentitle the defendants from their costs - See paragraphs 27 to 35.

Cases Noticed:

Veridian Inc. v. Dresser Canada Inc. et al., [1998] A.R. Uned. 578 (C.A.), refd to. [para. 22].

Hamelin v. Canada, [1997] A.R. Uned. 77 (Q.B.), refd to. [para. 23].

Jando v. Kung (1995), 164 A.R. 237 (Q.B.), refd to. [para. 31].

Atkinson v. McGregor et al. (1998), 227 A.R. 376 (Q.B.), refd to. [para. 31].

Reid v. Stein et al. (1999), 253 A.R. 90 (Q.B.), refd to. [para. 32].

Millott Estate et al. v. Reinhard et al. (2002), 322 A.R. 307 (Q.B.), refd to. [para. 32].

Wenden v. Trikha et al. (1992), 124 A.R. 1 (Q.B.), refd to. [para. 33].

Laframboise v. Billett (1991), 81 Alta. L.R.(2d) 285 (Q.B.), refd to. [para. 36].

Sidorsky et al. v. C.F.C.N. Communications Ltd. et al. (1998), 216 A.R. 151; 175 W.A.C. 151 (C.A.), refd to. [para. 45].

Argentia Beach (Summer Village) v. Warshawski and Conroy (1990), 106 A.R. 222 (C.A.), refd to. [para. 46].

Lalli v. Chawla (1997), 203 A.R. 27; 53 Alta. L.R.(3d) 121 (Q.B.), refd to. [para. 46].

Reid v. Stein et al. (1999), 253 A.R. 90 (Q.B.), refd to. [para. 46].

Counsel:

F.M. Mason (Mason Silver), for the plaintiff;

R.J. Hall, Q.C. (Scott Hall), for the defendant, Brenda Norma Derksen;

M.A. Morrison (Blake Cassels & Graydon), for the defendants, Ross Kaplan, Ross Kaplan Professional Corporation, Peter Forrester and MacLeod & Company;

M.L. Lutz (Scott Hall), for the defendants, Nancy Luu and Jennifer Luu.

This matter was heard on January 29, 2003, before Rowbotham, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following supplemental reasons for judgment and decision on costs on February 25, 2003.