Pauli et al. v. Ace INA Insurance et al., (2003) 336 A.R. 85 (QB)

JudgeRooke, J.
CourtCourt of Queen's Bench of Alberta (Canada)
Case DateApril 17, 2003
Citations(2003), 336 A.R. 85 (QB);2003 ABQB 600

Pauli v. Ace INA Ins. (2003), 336 A.R. 85 (QB)

MLB headnote and full text

Temp. Cite: [2003] A.R. TBEd. AU.006

Pauli et al. (plaintiffs) v. Ace INA Insurance et al. (defendants)

(Action No. 0201-07041; 2003 ABQB 600)

Indexed As: Pauli et al. v. Ace INA Insurance et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Rooke, J.

July 8, 2003.

Summary:

The plaintiff in a proposed representative action applied pursuant to rules 220 and 221 for a determination of the issue of whether Statutory Condition 4(7) of s. 614 of the Alberta Insurance Act permitted an insurance company to charge a deductible against the actual cash value in a total loss situation and keep the salvage.

The Alberta Court of Queen's Bench, in a decision reported at 334 A.R. 104 answered the question in the affirm­ative. The decision on the merits issue resulted in the dismissal of the action.

The Alberta Court of Queen's Bench issued a decision on costs, reported at [2003] A.R. Uned. 269.

The Alberta Court of Queen's Bench issued reasons for its decision on costs.

Practice - Topic 210.3

Persons who can sue and be sued - Indi­vid­uals and corporations - Status or stand­ing - Class or representative actions - Costs - A determination of the merits issue in a proposed representative action resulted in a dismissal of the action - The defendants sought costs under 17 separate bills of costs filed on behalf of counsel who repre­sented one or more of them - The plaintiffs argued that the merits motion raised a single issue of law that did not require the presence of multiple defence counsel and in fact only two defence briefs had been filed on the merits motion - The Alberta Court of Queen's Bench stated that "it was not only the merits motion that was dis­missed, but the whole of the proposed representative action, after a significant number of steps, not only on the merits motion but also on the certification motion, had been taken as required by law or as directed by the court, often at the urging of the plaintiffs. Thus, the costs are in rela­tion to the dismissal of this action as a whole" - See paragraph 45.

Practice - Topic 210.3

Persons who can sue and be sued - Indi­vid­uals and corporations - Status or stand­ing - Class or representative actions - Costs - A plaintiff in a proposed representative action applied for a determination of the issue of whether Statutory Condition 4(7) of s. 614 of the Alberta Insurance Act permitted an insurance company to charge a deductible against the actual cash value in a total loss situation and keep the sal­vage - The ques­tion was answered in the affirmative, resulting in a dismissal of the action - The plaintiffs argued that no costs should be awarded because the action raised the issue of access to justice in the context of class actions - The Alberta Court of Queen's Bench stated that with evidence of coun­sel's underwriting of one or more of the plaintiffs' costs risk, there were no access to justice concerns to war­rant an order of no costs - In any event, it was not the court's role to set policy on the issue of access to justice in the context of class actions - That was for the Alberta Legisla­ture to do - See paragraphs 29 to 32.

Practice - Topic 210.3

Persons who can sue and be sued - Indi­vid­uals and corporations - Status or stand­ing - Class or representative actions - Costs - A determination of the merits issue in a proposed representative action resulted in a dismissal of the action - Application of the ordinary costs rules normally meant the application of Schedule C, the appropriate column of which was determined by the damages claimed - The plaintiffs had sought $100 million in compensatory damages plus punitive damages - Column 5 was the appropriate Column for damages over $1.5 million - The plaintiffs argued that the action never got beyond the pre-certification stage and therefore the claim was only worth the value of the aggregate claims of the representative plaintiffs (about $16,500) - The Alberta Court of Queen's Bench held that Column 5 should be applied presumptively - The plaintiffs had collectively sought substantial compen­satory damages as well as punitive dam­ages - Further, the plaintiffs' argument that their pre-certification claim was only worth the value of the aggregate claims of the representative plaintiffs failed to take into account that, at the plaintiffs' insistence, steps in the certification motion had con­tinued apace with steps in the merits motion - See paragraphs 40 to 43.

Practice - Topic 210.3

Persons who can sue and be sued - Indi­vid­uals and corporations - Status or stand­ing - Class or representative actions - Costs - A determination of the merits issue in a proposed representative action resulted in a dismissal of the action - The defendants sought costs under 17 separate bills of costs filed on behalf of counsel who repre­sented one or more of them - The plaintiffs argued that the defendants should share in no more than a single set of costs or, in the instance of the merits motion, a second set of costs - The Alberta Court of Queen's Bench held that each defendant or group of defendants represented by counsel was entitled to one set of costs, but com­mensurate with the role they played in the defence of the action - The combination of entitlement to one set of costs per counsel for the defendants represented by that counsel, together with various column assignments, was the best way to realize equitable entitlement to costs - See para­graphs 44 to 57.

Practice - Topic 210.3

Persons who can sue and be sued - Indi­vid­uals and corporations - Status or stand­ing - Class or representative actions - Costs - A plaintiff in a proposed representative action applied for a determination of the issue of whether Statutory Condition 4(7) of s. 614 of the Alberta Insurance Act permitted an insurance company to charge a deductible against the actual cash value in a total loss situation and keep the sal­vage - The ques­tion was answered in the affirmative, resulting in a dismissal of the action - The plaintiffs argued that, because a plaintiff class had not been created and only one plaintiff brought the merits motion, the plaintiffs were not jointly and severally liable for the costs awarded to the defen­dant insurers - Similarly, the plaintiffs argued that a defendant should only be entitled to costs from the plaintiff insured by the defendant - The Alberta Court of Queen's Bench rejected the argu­ment - All of the named plaintiffs would be jointly and severally liable for the costs awarded - See paragraph 77.

Practice - Topic 6991

Costs - Entitlement - Where out of prov­ince law firm used - [See Practice - Topic 7137 ].

Practice - Topic 7003

Costs - Party and party costs - General and definitions - Amount involved - [See third Practice - Topic 210.3 ].

Practice - Topic 7029

Costs - Party and party costs - Entitlement to party and party costs - Successful party - Exceptions - Novel or important point - A plaintiff in a proposed representative action applied for a determination of the issue of whether Statutory Condition 4(7) of s. 614 of the Alberta Insurance Act permitted an insurance company to charge a deductible against the actual cash value in a total loss situation and keep the sal­vage - The question was answered in the affirmative, resulting in a dismissal of the action - The plaintiffs argued that no costs should be awarded because the action raised a novel point of law - The defen­dants argued that, to the extent that there was a novel point of law raised in the action, parties such as the defendants, who had done no wrong, should not be forced to bear the costs of someone seeking to clarify the law - The Alberta Court of Queen's Bench agreed with the defendants - See paragraphs 20 to 23.

Practice - Topic 7029.5

Costs - Party and party costs - Entitlement to party and party costs - Successful party - Exceptions - Public interest or test case - A plaintiff in a pro­posed representa­tive action applied for a determination of the issue of whether Statutory Condition 4(7) of s. 614 of the Alberta Insurance Act permitted an insur­ance company to charge a deductible against the actual cash value in a total loss situation and keep the sal­vage - The ques­tion was answered in the affirmative, resulting in a dismissal of the action - The plaintiffs argued that no costs should be awarded because the action raised a matter of broad public interest - The Alberta Court of Queen's Bench held that while the action raised a matter that may have been of interest to some mem­bers of the public, it was not one that sufficed as a matter of public interest justifying an order of no costs - The plain­tiffs' characteriz­ation of the action as public interest litiga­tion was inconsistent with the huge monet­ary award, including punitive damages, sought by them - See paragraphs 11 to 19.

Practice - Topic 7029.5

Costs - Party and party costs - Entitlement to party and party costs - Successful party - Exceptions - Public interest or test case - A plaintiff in a pro­posed representa­tive action applied for a determination of the issue of whether Statutory Condition 4(7) of s. 614 of the Alberta Insurance Act permitted an insur­ance company to charge a deductible against the actual cash value in a total loss situation and keep the sal­vage - The ques­tion was answered in the affirmative, resulting in a dismissal of the action - The plaintiffs argued that no costs should be awarded because the action constituted a test case - The Alberta Court of Queen's Bench rejected the argument - See para­graphs 24 to 28.

Practice - Topic 7045

Costs - Party and party costs - Entitlement to party and party costs - Where one coun­sel represents multiple plaintiffs, defen­dants, etc. - [See fourth Practice - Topic 210.3 ].

Practice - Topic 7053.1

Costs - Party and party costs - Entitlement to party and party costs - Class or repre­sentative actions - [See all Practice - Topic 210.3 ].

Practice - Topic 7134

Costs - Party and party costs - Disburse­ments - Photocopies or printing - At issue was whether laser printing could be charged in the same manner as photocopy­ing - The Alberta Court of Queen's Bench directed that reasonable additional copies of material could be so charged if, rather than being photocopied, they were gener­ated by laser printer, provided that the charges were no greater than photocopying charges - See paragraph 71.

Practice - Topic 7137

Costs - Party and party costs - Disburse­ments - Travelling expenses - Counsel - A determination of the merits issue in a proposed representative action resulted in a dismissal of the action - The Alberta Court of Queen's Bench held that there was no entitlement to any travel, accom­modation or meal costs for the defendants' out of town counsel, except for out of town Alberta counsel who did not have offices in Calgary - There was no evidence of any pre-existing long term relationship between the defendants and the out of town counsel - Second, the expertise of the out of town counsel was no more special­ized or helpful than that of other in town counsel who appeared - See paragraphs 62 to 67.

Practice - Topic 7138

Costs - Party and party costs - Disburse­ments - Computer research - The Alberta Court of Queen's Bench stated that "Under Schedule C, one is entitled to costs for each step taken. Often there is legal brief­ing required. Before electronic research, legal briefing was manual, but there were no additional costs associated with it. Since the technological advances to provide electronic research, prudent counsel have obviously gone to same, but the principle is the same: it is not a matter compen­sated" - See paragraph 68.

Practice - Topic 7170

Costs - Party and party costs - Liability for party and party costs - Joint and several liability - [See fifth Practice - Topic 210.3 ].

Cases Noticed:

Smith v. Co-operators General Insurance Co. (2002), 286 N.R. 178; 158 O.A.C. 1; 210 D.L.R.(4th) 443 (S.C.C.), refd to. [para. 11].

Edwards et al. v. Law Society of Upper Canada et al. (1998), 48 O.T.C. 226 (Gen. Div.), affd. (2000), 133 O.A.C. 286; 48 O.R.(3d) 329 (C.A.), affd. [2001] 3 S.C.R. 562; 277 N.R. 145; 153 O.A.C. 388, consd. [para. 20].

Williams v. Mutual Life Assurance Co. of Canada, [2000] O.T.C. 751; 6 C.P.C.(5th) 194 (Sup. Ct.), affd. (2001), 152 O.A.C. 344; 17 C.P.C.(5th) 103 (Div. Ct.), affd. (2003), 170 O.A.C. 165 (C.A.), consd. [para. 11].

M.C.C. v. Canada (Attorney General), [2002] O.J. No. 687 (Sup. Ct.), refd to. [para. 11].

Moyes v. Fortune Financial Corp. et al., [2002] O.T.C. 883 (Sup. Ct.), refd to. [para. 11].

Mahar v. Rogers Cablesystems Ltd. (1995), 25 O.R.(3d) 690 (Gen. Div.), refd to. [para. 11].

Friends of the Calgary General Hospital Society et al. v. Canada et al. (2000), 258 A.R. 22 (Q.B.), affd. (2001), 286 A.R. 128; 253 W.A.C. 128 (C.A.), dist. [para. 11].

Ratepayers of Calgary (City) v. Canada - see Friends of the Calgary General Hos­pital Society et al. v. Canada et al.

McNaughton Automotive Ltd. v. Co-oper­ators General Insurance Co., [2000] O.T.C. 727 (Sup. Ct.), revd. (2001), 151 O.A.C. 252; 54 O.R.(3d) 704 (C.A.), leave to appeal refused (2002), 289 N.R. 400; 163 O.A.C. 398 (S.C.C.), refd to. [para. 15].

Canada Southern Petroleum Ltd. et al. v. Amoco Canada Petroleum Co. et al. (1997), 211 A.R. 48; 153 D.L.R.(4th) 118 (Q.B.), consd. [para. 18].

Canada Deposit Insurance Corp. v. Cana­dian Commercial Bank (1987), 76 A.R. 271; 50 Alta. L.R.(2d) 1 (Q.B.), refd to. [para. 18].

Beaumaris Fishing Club v. Gravenhurst (Township) (1991), 4 O.R.(3d) 774 (Gen. Div.), refd to. [para. 20].

Elliott et al. v. Canadian Broadcasting Corp. et al. (1995), 82 O.A.C. 115; 125 D.L.R.(4th) 534 (C.A.), leave to appeal refused [1996] 1 S.C.R. vi; 201 N.R. 80; 93 O.A.C. 80, refd to. [para. 20].

Ciano v. York University, [2000] O.A.C. Uned. 336 (C.A.), affing. [2000] O.T.C. Uned. 91 (Sup. Ct.), refd to. [para. 20].

Brown et al. v. Durham Regional Police Force (1996), 2 O.T.C. 28 (Gen. Div.), affd. (1998), 116 O.A.C. 126; 43 O.R.(3d) 223 (C.A.), leave to appeal granted (1999), 252 N.R. 198; 133 O.A.C. 200 (S.C.C.), refd to. [para. 20].

Abdool et al. v. Anaheim Management Ltd. et al. (1995), 78 O.A.C. 377; 21 O.R.(3d) 453 (Div. Ct.), refd to. [para. 20].

Garland v. Consumers Gas Co. (1995), 22 O.R.(3d) 767 (Gen. Div.), affd. (1996), 93 O.A.C. 155; 30 O.R.(3d) 414 (C.A.), revd. [1998] 3 S.C.R. 112; 231 N.R. 1; 114 O.A.C. 1, refd to. [para. 20].

Smith v. Canadian Tire Acceptance Ltd. (1995), 22 O.R.(3d) 433 (Gen. Div.), affd. (1995), 26 O.R.(3d) 94 (C.A.), leave to appeal denied [1996] 3 S.C.R. xiii, refd to. [para. 20].

Hughes v. Sunbeam Corp. (Canada), [2002] S.C.C.A. No. 446, refd to. [para. 29].

Gariepy et al. v. Shell Oil Co. et al., [2002] O.T.C. 656; 23 C.P.C.(5th) 393 (Sup. Ct.), refd to. [para. 30].

Western Canadian Shopping Centres Inc. et al. v. Dutton et al., [2001] 2 S.C.R. 534; 272 N.R. 135; 286 A.R. 201; 253 W.A.C. 201, refd to. [para. 34].

Stevens v. Crawford et al. (2000), 264 A.R. 219 (Surr. Ct.), affd. (2001), 281 A.R. 201; 248 W.A.C. 201 (C.A.), refd to. [para. 40].

Harbin v. Masterman, [1896] 1 Ch. 351 (C.A.), refd to. [para. 46].

Canada v. Fraser, [1944] Ex. C.R. 97, refd to. [para. 46].

Manufacturers Mutual Insurance Ltd. v. Motor Accidents Authority (NSW) et al. (1991), 15 M.V.R. 435 (N.S.W.C.A.), refd to. [para. 46].

Pharand Ski Corp. v. Alberta (1992), 122 A.R. 395 (Q.B.), refd to. [para. 48].

Hansraj v. Ao et al. (2002), 314 A.R. 283 (Q.B.), refd to. [para. 62].

Madgett v. Dawley et al. (1986), 170 A.R. 351 (Q.B.), refd to. [para. 63].

Waterous Investments Inc. v. Liberton Holdings Ltd. (1996), 183 A.R. 229 (Q.B.), refd to. [para. 63].

McAteer et al. v. Devoncroft Develop­ments Ltd. et al. (2003), 340 A.R. 1 (Q.B.), refd to. [para. 65].

Dennis v. Northwest Territories (Commis­sioner) (1990), 39 C.P.C.(2d) 41 (N.W.T.S.C.), refd to. [para. 65].

S.G.H. v. Gorsline et al. (2001), 292 A.R. 329 (Q.B.), refd to. [para. 65].

V.A.H. v. Lynch et al. (1998), 238 A.R. 201 (Q.B.), refd to. [para. 66].

V.A.H. v. Lynch et al. (2000), 255 A.R. 359; 220 W.A.C. 359 (C.A.), refd to. [para. 66].

Reid v. Stein et al. (1999), 253 A.R. 90 (Q.B.), refd to. [para. 68].

Strandquist et al. v. Coneco Equipment et al., [2000] A.R. Uned. 86 (C.A.), refd to. [para. 68].

Westline Oilfield Construction Ltd. v. Petromet Resources Ltd. et al. (2002), 324 A.R. 339 (Q.B.), refd to. [para. 68].

Authors and Works Noticed:

Alberta, Court of Queen's Bench Costs Manual: Costs Between Parties (Novem­ber 2001), pp. 15 to 16 [para. 65]; 18 [para. 70].

Orkin, Mark M., The Law of Costs (2nd Ed.) (2002 Looseleaf Supp.), paras. 205.2(2) [para. 37]; 205.2(2)(d) [para. 9]; 208.2 [para. 36]; 209.4 [paras. 46, 47].

Stevenson, William A., and Côté, Jean E., Civil Procedure Guide 1996 (1996), p. 295 [para. 41].

Stevenson, William A., and Côté, Jean E., Civil Procedure Encyclopedia (2003), p. 9-31 [para. 41, footnote 7].

Counsel:

W.E. McNally and J.D. Cuming, for the plaintiffs;

A.L. Kirker and J.W. Rose, Q.C., for the defendants;

J.R. Black, J.B. Champion, M. Chaudhary, C.C.J. Feasby, B.G. Kapusianyk, S.H. Leitl, T.P. O'Leary, P.J. Pidde, R.J. Potts and M.F. Wesolowski, for the defen­dants.

This matter was heard on April 17, 2003, before Rooke, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary. Rooke, J., delivered a decision on costs on April 23, 2003 and delivered the following reasons for the decision on costs on July 8, 2003.

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    • Northwest Territories Supreme Court of Northwest Territories (Canada)
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    ...are not an allowable disbursement because they are contemplated under the fees portion of Schedule C: Pauli v. Ace Ina Insurance , (2003), 336 A.R. 85, 2003 ABQB 600, varied on other grounds (2004), 354 A.R. 348, 2004 ABCA 253; Moser v. Derksen , [2003] A.J. No. 231 (Q.B.); Westline Oilfiel......
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    ...Corp. (2008), 447 A.R. 89; 100 Alta. L.R.(4th) 356; 2008 ABQB 770, refd to. [para. 52]. Pauli et al. v. Ace INA Insurance et al. (2003), 336 A.R. 85 (Q.B.), refd to. [para. Reid v. Stein et al. (1999), 253 A.R. 90 (Q.B.), refd to. [para. 52]. Sidorsky et al. v. CFCN Communications Ltd. et a......
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    ...(1995), 167 A.R. 181; 27 Alta. L.R.(3d) 296 (Q.B.), refd to. [para. 53]. Pauli et al. v. Ace INA Insurance et al., [2003] 11 W.W.R. 74; 336 A.R. 85 (Q.B.), refd to. [para. 53]. Petrogas Processing Ltd. v. West Coast Transmission Co. (1990), 105 A.R. 384 (Q.B.), refd to. [para. 53]. Miller (......
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11 cases
  • Fullowka et al. v. Royal Oak Ventures Inc. et al., 2005 NWTSC 60
    • Canada
    • Northwest Territories Supreme Court of Northwest Territories (Canada)
    • July 25, 2005
    ...are not an allowable disbursement because they are contemplated under the fees portion of Schedule C: Pauli v. Ace Ina Insurance , (2003), 336 A.R. 85, 2003 ABQB 600, varied on other grounds (2004), 354 A.R. 348, 2004 ABCA 253; Moser v. Derksen , [2003] A.J. No. 231 (Q.B.); Westline Oilfiel......
  • Clancy v. Gough et al., (2011) 523 A.R. 163 (QB)
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    • Court of Queen's Bench of Alberta (Canada)
    • September 26, 2011
    ...Corp. (2008), 447 A.R. 89; 100 Alta. L.R.(4th) 356; 2008 ABQB 770, refd to. [para. 52]. Pauli et al. v. Ace INA Insurance et al. (2003), 336 A.R. 85 (Q.B.), refd to. [para. Reid v. Stein et al. (1999), 253 A.R. 90 (Q.B.), refd to. [para. 52]. Sidorsky et al. v. CFCN Communications Ltd. et a......
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    ...(1995), 167 A.R. 181; 27 Alta. L.R.(3d) 296 (Q.B.), refd to. [para. 53]. Pauli et al. v. Ace INA Insurance et al., [2003] 11 W.W.R. 74; 336 A.R. 85 (Q.B.), refd to. [para. 53]. Petrogas Processing Ltd. v. West Coast Transmission Co. (1990), 105 A.R. 384 (Q.B.), refd to. [para. 53]. Miller (......
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