Reid v. Stein et al., (1999) 253 A.R. 90 (QB)

• Judge: Johnstone, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: May 04, 1999
• Citations: (1999), 253 A.R. 90 (QB)

Reid v. Stein (1999), 253 A.R. 90 (QB)

MLB headnote and full text

Temp. Cite: [1999] A.R. TBEd. MY.057

Joan Elizabeth Reid and Clifford Reid (plaintiffs) v. Nancy Stein, The Leduc Special Transportation Association and The City of Leduc (defendants)

(Action No. 8903 15990)

Indexed As: Reid v. Stein et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Johnstone, J.

May 4, 1999.

Summary:

The elderly disabled plaintiff was injured when she fell while attempting to walk to and board a special bus. She and her hus­band sued the driver, the association that operated the bus service and the City. The issues of liability and quantum of damages were separated.

The Alberta Court of Queen's Bench, in decision reported 160 A.R. 206 held that the driver was negligent and that the association was vicariously liable. The court held that the plaintiff was 50% contributorily negli­gent. The court dismissed the claim against the City. The plaintiff and her husband appealed.

In a decision not reported in this series of reports, the Alberta Court of Appeal dis­missed the appeal.

The Alberta Court of Queen's Bench, in a decision reported 236 A.R. 22, assessed the plaintiff's damages. The hus­band abandoned his claim. An application was brought to determine a number of cost issues.

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

Interest - Topic 5011

Interest as damages (prejudgment interest) - Interest on nonpecuniary general damages - The Alberta Court of Queen's Bench held that a plaintiff was entitled to pre­judgment interest on a nonpecuniary award for pain and suffering to which it had applied an inflationary factor - The court stated that there was no compelling reason not to award prejudgment interest as pre­scribed by the legislators, since the legis­lation in Alberta (Judgment Interest Act) had already extracted inflation from the rate of interest, rendering it possible to make interest awards and adjustments for infla­tion without concern for over-compen­sa­tion - See paragraphs 6 to 11.

Interest - Topic 5012.2

Interest as damages (prejudgment interest) - Special (pecuniary) damages - The Alberta Court of Queen's Bench held that a plaintiff was not entitled to prejudgment interest on a pecuniary award for house­hold services to which it had applied an inflationary factor - Under s. 4(2) of the Judgment Interest Act, the rate of interest was set annually - It appeared probable that the interest rate was based on market or commercial rates which did not extract the entire inflation component from the rate - If so, it would not be appropriate to award both interest at that rate and adjust the award for inflation as this would lead to over-compensation - See paragraph 12.

Interest - Topic 5137

Interest as damages (prejudgment interest) - Torts - Negligence - Personal injuries (incl. special damages) - [See Interest - Topic 5011 and Interest - Topic 5012.2 ].

Practice - Topic 7247

Costs - Party and party costs - Offers to settle - Costs to unsuccessful defendant - Plaintiffs argued that the lateness of the defendants' offer to settle and the plaintiff wife's disability (which affected her ability to communicate) constituted special cir­cumstances which prevented the defend­ants' formal offer of settlement from being binding on the plaintiff (Rules of Court, rule 174(1)) - The defendants pointed out that the plaintiffs' counsel rejected the offer a day after it was received - The Alberta Court of Queen's Bench reviewed the rule and stated that the special reasons which would prevent the application of this mandatory rule would have to be excep­tional - The court ruled that the offer was binding on the plaintiff - But for plaintiffs counsel's rejection of the offer, the court would have found there was special reason to take the offer out of the purview of rule 174(1) - See paragraphs 16 to 26.

Practice - Topic 7648

Costs - The tariffs - Effect of change - A plaintiff sought costs on Column 1 of the new Schedule C (rule 601.1) of costs which came into effect in Alberta on Sep­tember 1, 1998 - The scale applied retro­actively to services performed before Sep­tember 1, 1998 - The defendants argued, inter alia, that the new Schedule C should not be applied retroactively for steps taken prior to September 1, 1998 - The Alberta Court of Queen's Bench concluded that there was no reason to deprive the plaintiff of the benefit of retroactivity of rule 601.1 respecting a majority of the services pro­vided - The defendants would receive the benefit of the new scale from the date of a settlement offer (October, 1998) - There was no evidence that the plaintiff was responsible for undue delay in pursuing this complex matter - There was no evi­dence that the action would have been pursued differently had counsel known higher costs would apply - See paragraphs 27 to 31.

Cases Noticed:

Pickett v. British Rail Engineering Ltd., [1979] 1 All E.R. 774; [1980] A.C. 136 (H.L.), refd to. [para. 7].

Andrews et al. v. Grand & Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182; [1978] 1 W.W.R. 577; 83 D.L.R.(3d) 452; 3 C.C.L.T. 225, refd to. [para. 8].

Teno et al. v. Arnold et al., [1978] 2 S.C.R. 287; 19 N.R. 1; 83 D.L.R.(3d) 609; 3 C.C.L.T. 272, refd to. [para. 8].

Thornton v. Board of School Trustees of School District No. 57 (Prince George) et al., [1978] 2 S.C.R. 267; 19 N.R. 552; 83 D.L.R.(3d) 480; [1978] 1 W.W.R. 607; 3 C.C.L.T. 257, refd to. [para. 8].

Watkins v. Olafson et al., [1989] 2 S.C.R. 750; 100 N.R. 161; 61 Man.R.(2d) 81; 61 D.L.R.(4th) 577; [1989] 6 W.W.R. 481; 39 B.C.L.R.(2d) 294; 50 C.C.L.T. 101, refd to. [para. 12].

Riches v. Miller et al. (1984), 50 A.R. 92; 30 Alta. L.R.(2d) 38 (C.A.), refd to. [para. 12].

Schnyder v. Doucette, [1991] B.C.J. No. 3239 (C.A.), refd to. [para. 12].

Westersund v. Westersund (1993), 48 R.F.L.(3d) 416 (Alta. C.A.), refd to. [para. 15].

Jando v. Kung (1995), 164 A.R. 237; 26 Alta. L.R.(3d) 416 (Q.B.), refd to. [para. 17].

Hilliard v. Grabinski et al. (1998), 221 A.R. 201 (Q.B.), refd to. [para. 17].

Tetterington v. Wiens et al. (1995), 165 A.R. 6; 89 W.A.C. 6 (C.A.), dist. [para. 17].

Herman v. Miller, [1998] 2 W.W.R. 72 (Sask. Q.B.), refd to. [para. 18].

Atkinson v. McGregor et al. (1998), 227 A.R. 376 (Q.B.), refd to. [para. 18].

Laube v. Juchli (1998), 228 A.R. 81; 188 W.A.C. 81 (C.A.), refd to. [para. 19].

Brookes v. Thomson (1991), 81 Alta. L.R.(2d) 270 (Q.B.), refd to. [para. 19].

Sullivan v. Weis (1989), 99 A.R. 233 (Q.B.), refd to. [para. 19].

Waterous Investments Inc. v. Liberton Holdings Ltd. (1996), 183 A.R. 229 (Q.B.), refd to. [para. 19].

Jones v. Trans America Life Insurance Co. of Canada (1996), 184 A.R. 120; 122 W.A.C. 120 (C.A.), refd to. [para. 19].

Morris et al. v. Hunt Morris & Associates (1982) Ltd. et al. (1987), 78 A.R. 96 (Q.B.), refd to. [para. 20].

Allen v. Allen, [1996] A.J. No. 794 (C.A.), refd to. [para. 20].

Whittle v. Davies (1987), 104 A.R. 336; 55 Alta. L.R.(2d) 391 (C.A.), refd to. [para. 20].

Rosin v. Rosin (1994), 162 A.R. 162; 83 W.A.C. 162 (C.A.), refd to. [para. 20].

Markdale v. Ducharme (1998), 238 A.R. 98 (Q.B.), refd to. [para. 29].

V.A.H. v. Lynch (1998), 238 A.R. 201 (Q.B.), refd to. [para. 29].

Larson v. Curvin Holdings Ltd. et al., [1999] A.R. Uned. 688 (Q.B.), refd to. [para. 29].

Bruneau v. Caseley (1998), 230 A.R. 251 (Q.B.), refd to. [para. 29].

Noel v. Dawson, [1998] A.R. Uned. 045 (Q.B.), refd to. [para. 30].

Alberta v. Labour Relations Board (Alta.) et al. (1998), 226 A.R. 314 (Q.B.), refd to. [para. 30].

Broumas v. Broumas (1998), 230 A.R. 357 (Q.B.), refd to. [para. 30].

R.H.J., Re (1998), 235 A.R. 358 (Q.B.), refd to. [para. 30].

Beenham et al. v. Rigel Oil & Gas Ltd. et al. (1998), 236 A.R. 276 (Q.B.), refd to. [para. 30].

Berube v. Bobier (1999), 236 A.R. 119 (Q.B.), refd to. [para. 30].

26561 Alberta Ltd. et al. v. King et al., [1999] A.R. Uned. 029 (C.A.), refd to. [para. 30].

Industrial Acceptance Corp. v. Beaupre (1956), 18 W.W.R.(2d) 685 (Alta. C.A.), refd to. [para. 46].

Amoco Canada Resources Ltd. et al. v. Amax Petroleum of Canada Ltd. (1992), 127 A.R. 155; 20 W.A.C. 155 (C.A.), refd to. [para. 46].

Lalli v. Chawla (1997), 203 A.R. 27; 53 Alta. L.R.(3d) 121 (Q.B.), appld. [para. 56].

Lee et al. v. Leeming (1985), 61 A.R. 18 (Q.B.), appld. [para. 56].

Sidorsky et al. v. CFCN Communications Ltd. et al. (1995), 167 A.R. 181; 27 Alta. L.R.(3d) 296 (Q.B.), appld. [para. 56].

Argentia Beach (Summer Village) v. Warshawski and Conroy (1990), 106 A.R. 222 (C.A.), appld. [para. 56].

Statutes Noticed:

Judgment Interest Act, R.S.A. 1980, c. J-0.5, sect. 4(1), sect. 4(2) [para. 8].

Rules of Court (Alta.), rule 169(1) [para. 15]; rule 174(1)(b) [para. 16]; rule 601.1 [para. 28]; rule 605 [para. 45].

Authors and Works Noticed:

Cooper-Stephenson, Kenneth D., and Saunders, Iwan B., Personal Injury Dam­ages in Canada (2nd Ed. 1996), p. 87 [para. 9].

Waldron, M.A., The Law of Interest in Canada (1992), p. 152 [para. 9].

Counsel:

Patrick Phelan, for the plaintiffs;

Jerri L. Cairns, for the defendants.

This application was heard before Johnstone, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on May 4, 1999.