Zwicker v. Schubert et al., (1999) 184 Sask.R. 35 (QB)

• Jurisdiction: Saskatchewan
• Judge: Klebuc, J.
• Neutral Citation: 1999 SKQB 49
• Citation: (1999), 184 Sask.R. 35 (QB),1999 SKQB 49,1999 FCA 49,[1999] 12 WWR 273,184 Sask R 35,184 SaskR 35,(1999), 184 SaskR 35 (QB),184 Sask.R. 35
• Date: 07 September 1999
• Court: Court of Queen's Bench of Saskatchewan (Canada)

Zwicker v. Schubert (1999), 184 Sask.R. 35 (QB)

MLB headnote and full text

Temp. Cite: [1999] Sask.R. TBEd. OC.015

Lois Helen Zwicker (plaintiff) v. Dr. Matthew Schubert and Dr. Chaudhary Karam-Dad (defendants)

(1996 Q.B. No. 0973; 1999 SKQB 49)

Indexed As: Zwicker v. Schubert et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Klebuc, J.

September 7, 1999.

Summary:

The plaintiff sued two doctors, Schubert and Karam-Dad, claiming that they breached their fiduciary and contractual duty to her, committed battery and were negligent. She sought exemplary damages, special damages and pecuniary and nonpecuniary damages. The jury awarded her $40,000 nonpecuniary general damages; $1,500 for cost of future care; $1,400 special damages; but nothing for punitive exemplary or other damages claimed. The jury dismissed the claim against Karam-Dad. The parties sought costs.

The Saskatchewan Court of Queen's Bench declined to award the plaintiff costs on a solicitor-client basis. The court awarded the plaintiff a Bullock order requiring Schubert to pay any costs assessed against her by Karam-Dad.

Practice - Topic 5176

Juries and jury trials - Conduct of jury trial - Costs - The plaintiff sued her sur­geon and her family practitioner who assisted him in surgery for damages for medical malpractice - The trial lasted 18 days - A jury awarded her damages against the surgeon but dismissed her claim against her family practitioner - The Saskatchewan Court of Queen's Bench allowed the plain­tiff to recover fourteen-eighteenths of the cost of the jury from the surgeon, on the basis of 18 days of trial minus two days for the unsuccessful claim against the family practitioner and minus two addi­tional days for unsuccessful claims against the surgeon for punitive and exemplary damages - See paragraphs 15 to 18.

Practice - Topic 7029.6

Costs - Party and party costs - Entitle­ment to party and party costs - Successful party - Exceptions - Legal expense paid by third party - The plaintiff sued her surgeon and her family practitioner who assisted him in surgery for damages for medical malprac­tice - A jury awarded her damages against the surgeon but dismissed her claim against her family practitioner - The plaintiff submitted that she should not be liable for costs to the family practi­tioner, because his costs were payable by the medical associ­ation - The Saskatchewan Court of Queen's Bench held that the family practi­tioner was not barred from seeking costs, where there was no evidence that he was not liable for the fees and disbursements of his solicitors - See paragraphs 38 to 42.

Practice - Topic 7030

Costs - Party and party costs - Entitle­ment to party and party costs - Where success or fault divided - The plaintiff sued her sur­geon and her family practi­tioner who assisted him in surgery for damages, claim­ing that they breached their fiduciary and contractual duty to her, committed battery and were negligent - She sought exemplary damages, special damages and pecuniary and nonpecuniary damages - A jury dis­missed her claim against her family prac­titioner - The jury awarded her nonpecu­niary general dam­ages, damages for costs of future care and special damages against the surgeon, but nothing for punitive dam­ages or the other damages claimed - The sur­geon submitted that the plaintiff's fail­ure to succeed in some of her claims, entitled him to the costs of these issues - The Saskatchewan Court of Queen's Bench held that the claims for punitive and ex­emplary dam­ages were distinctive from the traditional heads of damages and took up two days of trial - Accordingly, the plain­tiff was not entitled to recover costs for these two days from the surgeon - See paragraphs 19 to 27.

Practice - Topic 7037

Costs - Party and party costs - Entitle­ment to party and party costs - Factors or cir­cumstances reducing entitlement - The plaintiff sued a surgeon and her family practitioner who assisted him in surgery for damages for medical malpractice - A jury awarded her damages against the surgeon but dismissed her claim against her family practitioner - The defendants submitted that her costs should be reduced because of her allegations of maliciousness and deceit and the excessiveness of her claims for damages - The Saskatchewan Court of Queen's Bench declined to sanc­tion the plaintiff by reduc­ing her costs, given her physical and emo­tional problems - See paragraphs 50 to 57.

Practice - Topic 7085

Costs - Party and party costs - Witness fees and costs of preparation for trial or appeal - Expert witness fees - The plain­tiff sued a surgeon and her family practi­tioner who assisted him in surgery for damages for medical malpractice - A jury awarded her damages against the surgeon but dis­missed her claim against her family prac­titioner - The surgeon opposed reim­burse­ment of three of the plaintiff's nine medi­cal experts - The three experts did not testify at trial in person or by way of a report and their charts were admitted in evidence on a consent basis - The Saskatchewan Court of Queen's Bench reiterated the Guidelines regarding expert witness fees - The court determined the portions of the experts' fees that were reimbursable - See paragraphs 34 to 37.

Practice - Topic 7155

Costs - Party and party costs - Liability for party and party costs - Bullock order or Sanderson order - Where success divided - The plaintiff sued a surgeon and her family practitioner who assisted him in surgery for damages for medical malprac­tice - The jury awarded her damages against the surgeon and dismissed the claim against her family practitioner - The Saskatchewan Court of Queen's Bench held that the plaintiff was entitled to a Bullock order requiring the surgeon to pay any costs assessed against her by the family practi­tioner - See paragraphs 46 to 49.

Practice - Topic 7454

Costs - Solicitor and client costs - Enti­tlement to solicitor and client costs - Improper, irresponsible or unconscionable conduct - The plaintiff sued a surgeon and her family practitioner who assisted him in surgery for damages for medical malprac­tice - The jury awarded her damages against the surgeon and dismissed the claim against her family practitioner - The Saskatchewan Court of Queen's Bench declined to award her solicitor and client costs, where neither defendant engaged in reprehensible or outrageous conduct or unduly prolonged the trial - Their vigourous defence was reasonable, given that the plaintiff attacked the moral char­acter and professional credibility of each defendant - See paragraphs 13 to 14.

Cases Noticed:

Thomas v. Lafleche Union Hospital Board (1991), 93 Sask.R. 150; 4 W.A.C. 150 (C.A.), refd to. [para. 11].

Dominion Fire Insurance Co. v. Thomson, [1923] 4 D.L.R. 903 (Sask. C.A.), refd to. [para. 11].

Stromberg v. Law Society of Saskatchewan et al., [1996] 10 W.W.R. 737; 149 Sask.R. 226 (Q.B.), refd to. [para. 11].

Herman et al. v. Miller et al., [1988] 2 W.W.R. 72; 64 Sask.R. 71 (Q.B.), refd to. [para. 11].

Welk v. Social Services Appeal Board (Sask.) et al. (1985), 44 Sask.R. 252; 23 D.L.R.(4th) 698 (Q.B.), revd. (1986), 28 D.L.R.(4th) 475 (Sask. C.A.), refd to. [para. 11].

Benson v. Benson (1994), 120 Sask.R. 17; 68 W.A.C. 17 (C.A.), refd to. [para. 12].

Johnson v. Erickson, [1941] 3 D.L.R. 651 (Sask. C.A.), refd to. [para. 12].

Guyer Oil Co. v. Fulton, [1973] 2 W.W.R. 613 (Sask. Q.B.), refd to. [para. 12].

Nathu v. Imbrook Properties Ltd., [1992] 6 W.W.R. 373; 131 A.R. 186; 25 W.A.C. 186 (C.A.), refd to. [para. 12].

Olson v. New Home Certification Program of Alberta (1986), 69 A.R. 356; 44 Alta. L.R.(2d) 207 (Q.B.), refd to. [para. 13].

Becker Estate v. Hoffmann (1989), 21 A.C.W.S.(3d) 738 (Ont. H.C.), refd to. [para. 13].

Coughlin v. Mutual of Omaha Insurance Co. (1992), 96 D.L.R.(4th) 551 (Ont. Gen. Div.), refd to. [para. 13].

Vaillancourt v. Watson (1990), 27 A.C.W.S.(3d) 781 (Ont. Gen. Div.), refd to. [para. 13].

Foulis v. Robinson (1978), 21 O.R.(2d) 769 (C.A.), refd to. [para. 13].

Lauscher v. Berryere (Bankrupt) et al. (1997), 157 Sask.R. 117 (Q.B.), refd to. [para. 16].

Janke v. Cenalta Oilwell Servicing Ltd. et al., [1996] 4 W.W.R. 695; 139 Sask.R. 283 (Q.B.), refd to. [para. 16].

Evason v. Yeboah, [1999] Sask.R. Uned. 127 (Q.B.), refd to. [para. 17].

Alvin's Auto Service Ltd. v. Clew Hold­ings Ltd. et al., [1997] 9 W.W.R. 5; 157 Sask.R. 278 (Q.B.), refd to. [para. 19].

Sunnyside Nursing Home v. Builders Con­tract Management Ltd. et al. (1985), 40 Sask.R. 1 (Q.B.), refd to. [para. 19].

Haughian v. Paine, [1987] 6 W.W.R. 88; 58 Sask.R. 232 (Q.B.), refd to. [para. 21].

Winkler v. Belarus Equipment of Canada Ltd. and Williams (1985), 37 Sask.R. 143; 17 D.L.R.(4th) 26 (C.A.), refd to. [para. 23].

Emery v. Dias, [1995] B.C.J. No. 2086 (S.C.), refd to. [para. 24].

Turcoane v. Schaffer et al. (1997), 156 Sask.R. 169 (Q.B.), refd to. [para. 31].

Bilash v. Bilash, [1983] Sask. D. 1589-01 (Q.B.), refd to. [para. 31].

Hill v. Develcon Electronics Ltd. (No. 2) (1991), 92 Sask.R. 258 (Q.B.), refd to. [para. 31].

Ouwroulis v. Reid, [1996] O.J. No. 509 (Gen. Div.), refd to. [para. 31].

Haig v. Bamford et al., [1974] 6 W.W.R. 236 (Sask. C.A.), refd to. [para. 35].

Electronic Superstore Ltd. v. Geransky Brothers Construction Ltd. et al. (1991), 90 Sask.R. 150 (Q.B.), refd to. [para. 35].

Huff and Donnelly v. Price et al. (1993), 23 B.C.A.C. 76; 39 W.A.C. 76 (C.A.), refd to. [para. 38].

Wenden v. Trikha et al. (1992), 124 A.R. 1; 6 C.P.C.(3d) 15 (Q.B.), refd to. [para. 38].

Qureshi et al. v. Nickerson (1991), 77 D.L.R.(4th) 1 (B.C.C.A.), refd to. [para. 38].

Linett v. Strasberg, [1994] O.J. No. 2732 (Gen. Div.), refd to. [para. 38].

Plasway v. Abraham, [1993] B.C.J. No. 1430 (S.C.), refd to. [para. 38].

Armand v. Carr, [1927] S.C.R. 348, refd to. [para. 39].

Clarke v. Ontario (Attorney General), [1967] 2 O.R. 393 (S.C.), refd to. [para. 39].

Clarke v. Ontario (Attorney General) (1970), 12 D.L.R.(3d) 771 (S.C.C.), refd to. [para. 39].

Brady (W.H.) Co. v. Letraset Canada Ltd., [1991] 2 F.C. 226; 122 N.R. 161 (F.C.A.), refd to. [para. 39].

Besterman v. British Motor Cab Co., [1914] 3 K.B. 181 (C.A.), refd to. [para. 46].

Badger v. Surkan and Holy Family Hospi­tal, [1973] 1 W.W.R. 302 (Sask. C.A.), refd to. [para. 48].

Kowall v. Lui et al. (1997), 207 A.R. 313 (Q.B.), refd to. [para. 48].

Helenius v. Price, Mann et al. (1967), 60 W.W.R.(N.S.) 569 (B.C.S.C.), refd to. [para. 48].

Lauscher v. Berryere (Bankrupt) et al. (1999), 177 Sask.R. 219; 199 W.A.C. 219 (C.A.), refd to. [para. 50].

Briggs v. Carson et al., [1924] 4 D.L.R. 774 (Sask. C.A.), refd to. [para. 54].

Sagon v. Royal Bank of Canada et al. (1992), 105 Sask.R. 133; 32 W.A.C. 133 (C.A.), refd to. [para. 54].

Barrett, Nicholas and Reiss v. Board of Education of Northern Lights School Division No. 113 (1986), 47 Sask.R. 251 (Q.B.), affd. (1988), 64 Sask.R. 81; 49 D.L.R.(4th) 536 (C.A.), refd to. [para. 54].

Wong v. Schienbein et al. (1986), 49 Sask.R. 86 (Q.B.), refd to. [para. 54].

Royal Bank of Canada v. Kwiatkowski et al. (1989), 81 Sask.R. 241 (Q.B.), refd to. [para. 54].

Statutes Noticed:

Jury Act, S.S. 1980-81, c. J-4.1, sect. 16 [para. 15].

Rules of Court (Sask.), rule 544 [para. 20].

Authors and Works Noticed:

Orkin, Mark M., The Law of Costs (2nd Ed.) (1998 Looseleaf), s. 209 [para. 47].

Counsel:

R.L.J. Stevenson and A.S. Brent, for the plaintiff;

C.H. Glazer, Q.C., and M.J.V. Ouellette, for the defendants.

This case was heard before Klebuc, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment on September 7, 1999.