Meehan v. Holt, 2011 ABQB 110

Court of Queen ’ s Bench of Alberta Citation: Meehan v. Holt, 2011 ABQB 110 Date: 20110222 Docket: 0001 11307 Registry: Calgary Between: Ronald R. Meehan and Debra L. Hogan Plaintiffs - and - Harold R. Holt and Kristen M. Holt Defendants _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice W.P. Sullivan _______________________________________________________ I. Introduction [ 1 ] On May 28, 2010, I granted Debra Hogan a global damage award of $252,835.14 in this personal injury matter. Mr. Meehan has settled his claim. Ms.

Hogan (the “Plaintiff”) now seeks a total of $247,372.88 in costs and disbursements, as well as $83,370.02 in pre-judgment interest. The parties have been unable to agree on the issues of pre-judgment interest and disbursements, and have come to me for direction. II. Facts

[ 2 ] The parties were involved in a minor impact motor vehicle accident that took place on September 8, 1998 at 1:55 p.m. Ronald R. Meehan's vehicle, in which the Plaintiff was a front seat passenger, struck the vehicle of the Defendant Kristen M. Holt at the intersection of 69th Avenue and 4A Street S.W. Both vehicles sustained only minimal damage. The Plaintiff's injuries were “non impact”. [ 3 ] As liability was admitted, the trial dealt with causation and damages.

The Plaintiff claimed damages under several heads related to her injuries and her resulting loss of income, as discussed in my judgment of May 28, 2010: 2010 ABQB 287 , 485 A.R.1 (the “Trial Judgment”). I found that the Plaintiff suffered injuries as a result of the collision, which began to resolve with the passage of time. In particular, she suffered a strain to her neck and back, headaches, hand numbness, a shoulder injury, and an injury to her temporomandibular joint. As well, I awarded the Plaintiff amounts for past loss of income and loss of capacity, but declined the claim for future loss of income.

During the course of the trial, I heard evidence from various experts: the doctors, dentists, and surgeons who had treated the plaintiff; chiropractors, massage therapists, and physiotherapists; medical experts in the areas of chronic pain, rheumatology, anaesthesiology, and orthopaedics; experts in the areas of functional capacity assessment; and economic valuation experts. [ 4 ] The Defendants submit that some of the Plaintiff's disbursements for experts are unreasonable. In particular, they take issue with the fees for Cara Brown and Mary-Alice Brennan. Ms.

Brown is a Labour Economist who provided evidence regarding the Plaintiff's loss of income. I largely rejected her evidence, and preferred that of John Williams, the Defendants' expert. Ms. Brown’s approach overstated the loss to the Plaintiff. I found a total loss of income of $40,000, while Ms. Brown’s highest scenario posited $1,081,986. Most seriously, her figure for future loss of income failed to take into account that the plaintiff was not seeing patients up to her post-collision capacity. As well, Ms.

Brown included in her report a HALS/PALS analysis, which I found not to be helpful given the specific earnings information available. [ 5 ] The Plaintiff claims a total of approximately $53,000 in disbursements for Ms. Brown. The invoices have been provided to the Court. They include multiple lines for reviewing and updating the calculations, and detailed item-by-item calculation and sensitivity analysis. They also include a significant amount related to the HALS/PALS analysis.

I note as well the magnitude of the bill for trial preparation and attendance: approximately $8,100 invoiced on October 30, 2009, and another $22,700 invoiced on November 30, 2009 (without GST). Ms. Brown testified for 6 hours. While this total also includes helping counsel to prepare for cross-examination of the defendant's expert, I still find the total to be disproportional. I am informed by counsel that the bill for Mr.

Williams, a partner at KPMG LLP and senior vice president of KPMG Forensic Inc., was approximately $11,500. [ 6 ] Next, Mary-Alice Brennan performed a functional capacity evaluation for the Plaintiff. The total disbursements still at issue for Brennan & Associates appear to be approximately $16,700. The Defendants complain about the lack of detail on some of the invoices; the excessive rate charged; the lack of invoicing for some of the expenses claimed; and an exaggerated number of hours for tasks. More importantly, the work performed by Ms. Brennan overlapped with the work of Pearl Mark. [ 7 ] Ms.

Mark, a kinesiologist, was qualified as an expert in Functional Capacity Evaluation. Ms. Mark assessed the Plaintiff’s functional abilities in relation to the requirements of her job as a chiropractor, and also as an input to Dr. Guerriero’s assessment. She assessed the Plaintiff’s strength, mobility, and tolerance, taking her through various body positions. She then compared the Plaintiff’s abilities against the abilities required of a chiropractor under the National Occupational Classification. Ms.

Mark’s conclusion was that the Plaintiff could meet her job requirements but “‘with pain’”: at para. 185. [ 8 ] Ms. Brennan was also qualified to give evidence in Functional Capacity Evaluation. She similarly performed a physical examination that included strength, mobility, and tolerance in various positions. As well, Ms. Brennan compared Hogan’s abilities to those required for a chiropractor under the National Occupational Classification.

She found that Hogan’s right neck and shoulder muscles were weaker, and would “‘contribute to limited comfort and tolerance for specific work related activities such as required in her line of work as a chiropractor’”: at para. 194. Ms. Brennan recommended treatments for the Plaintiff, such as a chronic pain program, chiropractic and message. Further, she recommended certain appliances to assist the Plaintiff, including “a long-handle reacher, bathroom scrubber and duster, a travel pillow and contour or feather pillow”, and certain ergonomic work devices: at para. 197. As well, Ms.

Brennan recommended amounts for house cleaning, yard cleaning, and moving expenses. She also provided an opinion on how the Plaintiff could space out her patients given her restrictions. [ 9 ] The Plaintiff’s evidence shows that a Notice to Admit Opinion was served on the Defendants regarding Ms. Brennan. The Defendants refused to admit her opinion.

[ 10 ] In regards to some other expert invoices, the Defendants also submit that the hourly rate charged is excessive and the invoices are not sufficiently detailed. The Defendants have not provided any evidence as to the industry standard for rates. All the invoices under this head show some detail as to the work performed. The Plaintiff also points to a Notice to Admit Opinion, a Notice of Intention to enter an expert’s report without calling the expert, and a Notice of Persons Not to be Called at Trial.

These notices included one or more of the experts discussed in this paragraph, and were objected to by the Defendants. [ 11 ] This matter did not come to trial until November 2009, approximately 11 years from the time of the accident. The Defendants submit that pre-judgment interest should not be awarded for the whole period of 11 years due to delays in prosecution by the Plaintiff. The Defendants point to a delay of up to two years in responding to one set of undertakings, as well as further lengthy delays in scheduling examinations and providing other undertakings.

The Plaintiff points out that the Defendant also delayed in scheduling, and that settlement discussions also occurred between the parties during this time. As well, the Plaintiff notes that some of the documents it undertook to produce were dependent on third parties. Even taking that into account, the delay is excessive. III. Issues [ 12 ] 1. Should pre-judgment interest be awarded over the entire period from the accident to the date of judgment, or should the period be reduced? 2. Are particular disbursements in the Bill of Costs unreasonable? IV. Analysis 1.

Applicable Rules of Court [ 13 ] Rule 15.2(1) of the Alberta Rules of Court , Alta. Reg. 124/2010 (the “new Rules”) directs that, unless an enactment or other rule provides otherwise, the new Rules apply to every existing proceeding. This proceeding falls into the definition of an existing proceeding, as it was commenced but judgment on costs had not been issued before November 1, 2010, when the new Rules came into effect: see Rule 5.1; Broers v. Real Estate Council of Alberta , 2010 ABQB 774 . I note that the parties argued this matter under the Alberta Rules of Court , Alta.

Reg. 390/1968 (the “former Rules”), on October 20, 2010. [ 14 ] Rule 15.12 provides that “[w]here these rules impose a new test, provide new criteria or provide an additional ground for making an application in an existing proceeding, these rules apply in respect of the application if the application was made but has not been heard prior to the coming into force of these rules.” Were I to find that a difference arose between the new and former Rules that was relevant to my decision and that created a “difficulty, injustice or impossibility”, the operation of Rule 15.6 would allow me to substitute one or more of the former Rules for the new Rules.

The purpose of the Rules is to “provide a means by which claims can be fairly and justly resolved in or by a court process in a timely and cost-effective way:” new Rules, s.1.2(1). In this case, if there was a difference between the Rules that affected my decision, it would be in the interests of fairness, timeliness, and cost-effectiveness to decide under the former Rules, as the parties argued this matter under the former Rules. However, I have not found that a difficulty or injustice arises here as between the former Rules and the new Rules, and accordingly I consider the matter under both sets of Rules.

My approach is not inconsistent with the approach in Broers , though different in that I consider both Rules, not just the former Rules. 2. Pre-Judgement Interest A. Law [ 15 ] The Judgment Interest Act , R.S.A. 2000, c. J-1 provides that pre-judgment interest shall be awarded "from the date the cause of action arose to the date of the judgment": at s .2(1). However, the Judgment Interest Act gives the Court the discretion to vary or reduce the pre-judgment interest where the circumstances of the case or the conduct of the action merit a reduction: see s. 2(3).

[16] The Alberta Court of Appeal has made it clear that the court can shorten the time for which pre-judgment interest is awardedwhen there is a delay. In the oft-cited case of Rayani v. Yule & Co. (Hong Kong) (1996), 1996 ABCA 35 , 178 A.R. 231 (C.A.),Cote J.A. ruled on an application by the plaintiff to overturn the trial judge's decision to deny the plaintiff two years of pre-judgmentinterest. The trial judge had found that the plaintiff had delayed the lawsuit, but had not engaged in precise analysis as to the extent ofthe delay, or the prevailing interest rates.

Cote J.A. upheld both the decision and the approach of the trial judge. He stated at paras.28-30: ...the plaintiff argues for full interest because the defendant Yule (or its liability insurer) had the use of the money throughout and couldearn interest on it. There is some weight in that argument, but to my mind other countervailing factors outweigh it. In the first place, the policy of s.2(3) is obviously to encourage promptness, and (if need be) to penalize delay by denying interest. In thesecond place, the plaintiff has no right to treat the defendant as its compulsory banker.

A torts claim should not be treated like a savingsaccount, idly drawing interest as long as the holder of it wishes. The third factor is practicality. If the damages in question here were millions of dollars, then it might be worth doing more exactaccounting. [17] In Pedherney v. Jensen, 2008 ABQB 345, aff’d 2011 ABCA 9, Rooke J. (as he then was) noted that absent exceptionalcircumstances, the plaintiff should receive interest. Pedherney concerned a significant impact motor vehicle accident, which took 11years to get to trial.

Rooke J. held he would not lower the interest award where he could not find fault for the delay. The mere time theaction took to get to trial, absent delay, was not enough to cut-off interest. [18] In Begro Construction v. St. Mary River Irrigation District (1994), (AB KB), 154 A.R. 1 (Q.B.), Power J.denied the Plaintiff pre-judgment interest for delays in prosecuting an action. The action was a construction dispute that had taken 12years to come to trial.

The judge held at para. 236: Based on the express statutory discretion provided in the Judgment Interest Act and the Jedlicks and Holt cases, delay in prosecuting anaction is a ground for denying a successful plaintiff prejudgment interest. Power J. held that this type of litigation could be resolved in 2 years, and awarded interest accordingly. [19] Similarly, in Pettipas v. Klingbeil, 2000 ABQB 988, 276 A.R. 24, Hutchinson J. reduced the period of pre-judgment interestto the reasonable time needed to resolve the claim. Pettipas dealt with a low-impact motor vehicle collision.

The matter took 7 years tocome to trial. Throughout that time, the plaintiffs failed to respond to undertakings, requiring the defendants to bring motions to compelundertakings. As well, the plaintiffs failed to quantify the more difficult aspects of their claim. Hutchinson J. found that the plaintiffswere trying to extend the trial so that they could turn their minor injuries into a financial windfall.

Accordingly, he reduced the period ofpre-judgment interest to 4 years: the 2 years that the plaintiffs had required to recover from their injuries, and another 2 years to resolvetheir claims after recovery. [20] In Hilliard v. Grabinski, 1998 ABQB 427, 221 A.R. 201, Lee J. considered the issue of a reasonable amount of time for amotor vehicle accident case to come to trial. In Hilliard, the Defendants had admitted liability and the issues before the court had to dowith the extent of the injury and the valuation of damages under a number of heads.

Lee J. allowed the Plaintiff pre-judgment interest forthe full amount of 7 years, but noted that “some of the time parameters herein are stretching the concept of ‘reasonableness’ somewhat”:at para. 292. Hilliard appears to have taken 10 days of trial time. Lee J. noted that in Gilchrist v. Oatway (1995), (ABKB), 168 A.R. 56 (Q.B.), aff’d (1997), 1997 ABCA 357 , 209 A.R. 225 (C.A.) a similar car accident case that took a similarnumber of days of trial time, the matter took five years to come to trial. Similarly, he noted that in Martorana v.

Lee (1994), (AB KB), 150 A.R. 167 (Q.B.), the matter came to trial in just over four years. [21] I have looked at the time to trial of some other motor vehicle liability cases which are similar to the current case. In Russell v.Turcott 2009 ABQB 19, the matter took 6 years to come to trial, and took 8 days to hear. In Prosser v. 20 Vic Management Inc., 2009ABQB 177, aff’d 2010 ABCA 57, 474 A.R. 288 the matter took 8 ½ years to come to trial, and was heard over 11 days. Marchand v.

Brar , 2008 ABQB 470 appears to have taken 7 years from the date of the first collision to the date of trial, and was heard over 10 days also. On the other hand, O’Scolai v. Antrajenda , 2008 ABQB 257 , 447 A.R. 114 took 4 years to get to trial and was heard over 20 days. Imbir v. Barron , 2006 ABQB 419 took 7 years to come to trial, and 21 days to hear. B. Application [ 22 ] The Plaintiff argues that this is a case like Pedherney , and consequently there should be an award of interest for the full period. It is true that both cases have taken roughly 11 years to get to trial.

However, I do not find this case to be similar to Pedherney . Here there was an unnecessary delay that is attributable to the Plaintiff. [ 23 ] This matter has taken 11 years to get to trial. This is a personal injury matter where the only issues were causation and damages. The injuries were relatively minor. The only difficulty arose due to the plaintiff's pre-existing degenerative conditions. A matter such as this should take only 6 years to get to trial. Giving the Plaintiff an additional year due to delays caused by the Defendant brings it up to 7 years.

I agree with Justice Lee that such a timeframe is stretching the limits of reasonableness. Accordingly, I award the plaintiff pre-judgment interest only for a period of 7 years. There is an onus on the Plaintiff to move the action forward, and many mechanisms available to the Plaintiff to do so. Unnecessary delay drives up costs, and impacts on access to justice. 3. Disbursements for Expert Fees A. Law [ 24 ] The Court of Queen's Bench Act , R.S.A. 2000, c. C-31, s. 21 gives the Court a wide discretion when awarding costs.

"However, that discretion must be exercised judiciously, on the basis of rational and sound principles having regard to what is appropriate in all of the circumstances of the case": MacCabe v. Westlock Roman Catholic Separate School District No. 110 , 1999 ABQB 666 , 243 A.R. 280 at para. 61 . [ 25 ] Both the former and the new Rules of Court use the wording "reasonable and proper" to define a costs award. The former Rule 600(1) defined costs as "all the reasonable and proper expenses which any party has paid or become liable to pay for the purpose of carrying on or appearing as a party to any proceeding".

Similarly, the new Rule 10.31(1) provides that "the Court may order one party to pay to another party, as a costs award, one or a combination of the following: (

a) the reasonable and proper costs that a party incurred to file an application, to take proceedings or to carry on an action, or that a party incurred to participate in an application, proceeding or action." [ 26 ] As regards entitlement to disbursements, both the former Rules and the new Rules give the court discretion to include in "costs" the charges of experts who testify at trial, as well as those who assist counsel in preparation: see former Rule 600(1)(a)(ii), as well as new Rule 10.31(2).

As well, both sets of Rules have included some guidance on factors. [ 27 ] The former Rules provided: 601(1) Notwithstanding anything in Rules 602 to 612, but subject to any Rule expressly requiring costs to be ordered, the costs of all parties to any proceedings (including third parties), the amount of costs and the party by whom or the fund or estate or portion of an estate (if any) out of which they are to be paid are in the discretion of the Court, and when deciding on costs the Court may consider the result in the proceeding and (

a) the amounts claimed and the amounts recovered, (

b) the importance of the issues, (

c) the complexity of the proceedings, (

d) the apportionment of liability, (

e) the conduct of any party that tended to shorten or to unnecessarily lengthen the proceeding,

(

f) a party's denial of or refusal to admit anything that should have been admitted, (

g) whether any step or stage in the proceedings was (

i) improper, vexatious or unnecessary, or (ii) taken through negligence, mistake or excessive caution, (

h) whether a party commenced separate proceedings for claims that should have been made in one proceeding or whether a partyunnecessarily separated their defence from another party, and (

i) any other matter relevant to the question of costs. [28] The new Rules provide: 10.33(1) In making a costs award, the Court may consider all or any of the following: (

a) the result of the action and the degree of success of each party; (

b) the amount claimed and the amount recovered; (

c) the importance of the issues; (

d) the complexity of the action; (

e) the apportionment of liability; (

f) the conduct of a party that tended to shorten the action; (

g) any other matter related to the question of reasonable and proper costs that the Court considers appropriate.

(2) In deciding whether to impose, deny or vary an amount in a costs award, the Court may consider all or any of the following: (

a) the conduct of a party that was unnecessary or that unnecessarily lengthened or delayed the action or any stage or step of the action; (

b) a party's denial of or refusal to admit anything that should have been admitted; (

c) whether a party started separate actions for claims that should have been filed in one action or whether a party unnecessarilyseparated that party's defence from that of another party; (

d) whether any application, proceeding or step in an action was unnecessary, improper or a mistake; (

e) an irregularity in a commencement document, pleading, affidavit, notice, prescribed form or document; (

f) a contravention of or non-compliance with these rules or an order; (

g) whether a party has engaged in misconduct. [29] The reasonableness of a disbursement must be determined in light of the circumstances which existed at the time it wasincurred. Cote J.A. stated the rule in Viridian Inc. v. Dresser Canada, Inc., 1998 ABQB 687 [Viridian QB].

He gave Queen’s Bench costdirections in that judgment because, as he noted in the concurrent set of reasons at 1998 ABCA 275 at para. 1: “ the trial judge isunfortunately now dead, [and]...counsel have...asked me, in my capacity as a Queen’s Bench judge, to give those directions.”Cote J.A.stated at para. 4 of Viridian QB: It is trite law that the question is not what was necessary, still less how much hindsight suggests was really necessary.

The question iswhether what was done, and the money that was spent at the time, were reasonable, given the state of knowledge then existing. [30] In Petrogas Processing Ltd. v. Westcoast Transmission Co. (1990), (AB KB), 105 A.R. 384 (Q.B.),O'Leary J. provided the following guidance at para. 47:

When considering the reasonableness or otherwise of an expenditure made by the defendant I must view the matter through the eyes ofthe defendant and in light of the problem facing it when the expenditure was made. The test of reasonableness is not, in my opinion,entirely based on the importance of the expenditure to success at trial. Hindsight may show that some liabilities assumed were, in theend, of little or no benefit. The question is whether the expense was reasonable and proper in the light of the circumstances which existedat the time it was incurred.

The issues raised from time to time by the pleadings and by discovery and production are significantcircumstances. The magnitude of the expenditure in relation to the amount at risk in the proceedings is another important consideration.In all cases the party taxing costs has the burden of showing that both the nature of the expense and its amount were reasonable andproper in the circumstances. [31] See also S.F.P. v. MacDonald, 1999 ABQB 322, 242 A.R. 134; Edmonton Regional Airports Authority v. North WestGeomatics Ltd., 2003 ABQB 280, 332 A.R. 299; Anderson v.

Ball (1997), (AB KB), 214 A.R. 332 (Q.B.). [32] In MacCabe, Johnstone J. summarized some of the factors the Court may consider when exercising its discretion, at para.76: It is clear that an award for disbursements is within my discretion. In determining whether or not a disbursement is reasonable, I mayconsider the following factors: (

a) the length of the trial; (

b) its complexity; (

c) the nature and number of the issues involved in the trial; (

d) the degree of contest as to evidentiary matters; (

e) the degree of contest as to the credibility of witnesses, including professional expert witnesses; (

f) the nature and number of the defenses mounted; (

g) the requirement for and use of experts; (

h) the use of models, tests and scientific evidence; (

i) the nature and amount of damages at issue; (

j) the relationship of the expenses claimed as costs to the amounts at issue in damages; (

k) any agreement of counsel to share specific expense items. [33] Another of the factors the court can consider is experts that give overlapping evidence: Lee v. Lepage, 2010 ABQB 829. I notethat Rule 8.16(1) of the new Rules provides that “[u]nless the Court otherwise permits, no more than one expert is permitted to giveopinion evidence on any one subject on behalf of a party.” However, I do not impose this test on the parties as the matter was arguedunder the former Rules. [34] In Copithorne v. Transalta Utilities Corporation, 2007 ABQB 82, Bensler J. reduced the cost award for an expert.

She notedthat it was reasonable to retain an expert in the area and that the hourly rate was not excessive. However, the report was unduly complex,and made the assessment of the loss more difficult. She noted, at para. 7: ...However, it is appropriate to consider the helpfulness of the expert’s opinion: Ellis; Rushton v. Hofer, [1999] A.J. No. 380 (Q.B.);Hughes v. Gillingham, 1999 ABQB 747. It is also appropriate to consider if the expert’s report constitutes “overkill” and therebycomplicates the task of the Court: Fullowka v. Royal Oak Ventures Inc., 2005 NWTSC 60.

A claim for costs, including sums fordisbursements, may be reduced where the costs claimed are disproportionate to the damages awarded at trial: Nathu (c.o.b. Plaza Deliand Gift Shop) v. Imbrook Properties Ltd., [1992] A.J. No. 1230 (C.A.). Bensler J. also stated that there was limited utility in comparing the cost of a defendant's expert against a plaintiff's expert, because "it

may cost more to build a case than to rebut one": para. 9. See also Proctor v. Johnson, 2004 ABQB 87; Anderson. [35] In Byron v. Cabrera, 2003 ABQB 347, rev’d on other grounds, 2004 ABCA 398, 357 A.R. 201, Kent J. made some germanecomments about the duty on counsel to instruct experts to be reasonable. She stated, at para. 8: The first [argument] is that [Dr. Hashman] billed what he billed and the Plaintiff is obliged to pay it....The first submission does, I admit,create a difficulty for the Plaintiffs. In my view, it is appropriate to look at these accounts much like one would look at lawyer’saccounts.

It is not simply how many hours are spent but what are reasonable hours to spend....Counsel should instruct their experts toshow restraint in the amount of time spent and the manner in which they draft their expert reports.

Finally, counsel must be mindful ofthe fact that they should not expect reimbursement by the other side for an expert's bills simply because that is what the expert billed.The expert used must be a reasonable choice given the nature of the issue to be addressed and the account must be reasonable given thenature of the services that are expected to be provided. [36] The primary duty of the expert is to help the court to make factual inferences that require specialized knowledge.

In R. v.Mohan, (SCC), [1994] 2 S.C.R. 9, Sopinka J. stated at 23: What is required is that the opinion be necessary in the sense that it provide information ‘which is likely to be outside the experience andknowledge of a judge or jury’: as quoted by Dickson J. in R. v. Abbey, supra. As stated by Dickson J., the evidence must be necessary toenable the trier of fact to appreciate the matters in issue due to their technical nature. [37] Out of the role of the expert must also arise a duty.

An expert who provides a report that enters into irrelevant or unnecessaryanalysis not only does not assist the Court, but in fact makes the Court’s task more difficult. I agree with the comments of Kent J. aboveand note that “[c]ounsel should instruct their experts to show restraint”: Byron at para. 8. However, I think something more is needed.This court faces the problem of increasing costs, and in this case, costs that are greater than the amounts awarded at trial. To combat thisproblem, the Court must hold experts to a higher standard.

The reality is that in many cases, experts have it in their power to drive up thecosts of litigation. The duty of the expert to the court must include a duty to limit analysis and report content to what is reasonable in thecircumstances. The alternative, doing unnecessary work on the assumption that the losing side will pay, should be strongly discouraged.Higher costs of litigation impact access to justice. B. Application [38] Here, it is the Plaintiff who has the burden of showing that the expenses complained of are reasonable.

I note that, given thiswas a relatively straightforward personal injury matter where liability was admitted, I am inclined to find that the amount claimed fordisbursements is not reasonable. [39] I decline to allow the Plaintiff the full amount claimed for Ms. Brown’s report and testimony. The report was based on anapproach that was only minimally useful to the Court. Further, it was clearly “overkill”, to use the term in Copithorne. The Plaintiffargues that Ms. Brown’s report addressed multiple scenarios; however, the Court notes that the scenarios reflected were not realistic.

Inote that it was reasonable for the Plaintiff to engage an economist to deal with the loss of income claim. However, the Defendantsshould not be penalized for the prolixious analysis done by Ms. Brown. [40] I largely accepted the evidence of Mr. Williams, who provided a useful and satisfactory analysis for approximately 1/5 thetotal cost of Ms. Brown’s analysis. I look to the bill of Mr. Williams to determine a reasonable cost. I note that Mr. Williams is a partnerat KPMG LLP and the senior vice president of KPMG Forensic Inc.

It is reasonable to assume the hourly rate he charged reflectedconsiderable expertise and seniority. I am mindful that in some situations it may take more to build a case than to rebut one, but that doesnot apply here. Mr. Williams’s approach was completely different than that of Ms. Brown. He did not simply rebut Ms. Brown’smethods and conclusions, but rather built his own case. The Plaintiff argues that Mr. Williams did not perform any analysis on loss ofcapacity, while Ms. Brown reported on that area. However, I made no use of Ms. Brown’s analysis when coming to my decision on lossof capacity. I find that Mr.

Williams’s bill reflects a reasonable cost to build a loss of income case in these circumstances, and award thePlaintiffs only the equivalent amount for Ms. Brown. [41] I disallow entirely the cost of the functional assessment performed by Ms. Brennan. This work was duplicated by the work ofMs. Mark. Both were qualified as experts in Functional Capacity Evaluation. Both experts assessed the Plaintiff’s capacity as against the

requirements for her job according to the National Occupations Classification. There is no reason why two functional assessments were necessary. Although Ms. Brennan gave evidence with regards to appliances and the costs of items such as housecleaning and yard cleaning to assist the Plaintiff, this is not a sufficient difference to justify a second functional capacity evaluation. The Brennan invoices also suggest that Ms. Brennan helped counsel with trial preparation. However, in this case, the Plaintiff has been awarded costs for second counsel. Further, the amounts charged for trial preparation by Ms.

Brennan are unreasonable. Given my finding with regards to Ms. Brennan, I have not dealt with the Defendants’ argument regarding the unsubstantiated amount of Ms. Brennan’s bill. [ 42 ] The Defendant has also disputed some other expert fees. Although I am concerned that the expenses appear high, I am not prepared to interfere. 4. Notices to Admit and Not to Call [ 43 ] Both the former Rules and the new Rules give the Court discretion to penalize parties who have refused to admit facts or objected to a notice not to call an expert.

For notices to admit, see new Rule 10.33(2) and former Rules 128, 230(4), and 601(1)(f); for notices not to call, see new Rules 5.40(3) and 8.15(5) and former Rules 218.11(3) and 296.1(5). [ 44 ] The issue of notices to admit and not to call experts was raised by the Plaintiffs only in the context of showing that disbursements for those experts were reasonable and proper. Since I have declined to interfere with the disbursements for the majority of experts, their fees will be paid by the Defendants.

Therefore, the issue of the effect of the notices to admit and notices not to call served on the Defendants regarding these experts does not need to be considered. The issue arises only in regards to Ms. Brennan. The Plaintiffs served on the Defendants a notice to admit Ms. Brennan’s report. [ 45 ] In Patterson v. Hryciuk , 2005 ABQB 136 , Macklin J. declined to increase costs because the defendant had refused to admit facts, as it was a reasonable refusal.

In particular, it was reasonable for the Defendant to refuse to admit facts that were inconsistent with other evidence in the litigation, or that required the defendant to acknowledge that particular symptoms were part of the injury sustained. [ 46 ] I find that it was reasonable for the Defendants to refuse to admit Ms. Brennan’s report. Her evidence was contrary to other evidence. 5. Miscellaneous disbursements [ 47 ] The Defendant also raised an issue with regards to miscellaneous disbursements of approximately $6,000.00 for which receipts had not been provided.

Subsequently, it appears that some of those receipts were found. For the remainder, I accept Counsel’s representation that the amounts address conduct money and other miscellaneous expenses incurred in preparing for and attending at trial. V. Conclusion [ 48 ] The Plaintiff is entitled to pre-judgment interest for a period of seven years from the date of the accident. As well, the disbursements for Ms. Brown are reduced to an amount equivalent to the amount of Mr. Williams’s fees, and Ms. Brennan’s fees are disallowed entirely. As noted previously, the Plaintiff is entitled to her costs for the other experts.

Heard on the 20 th day of October, 2010. Dated at the City of Calgary, Alberta this 22 nd day of February, 2011.

W.P. Sullivan J.C.Q.B.A. Appearances: T. Thomas Mudry for the Defendants/applicants Simon J. Muller for the Plaintiffs/respondents