McNulty v. Edmonton (City), 2011 ABQB 481

Court of Queen ’ s Bench of Alberta Citation: McNulty v. Edmonton (City), 2011 ABQB 481 Date: 20110726 Docket: 0103 25396 Registry: Edmonton Between: John McNulty and Her Majesty the Queen in Right of Alberta Plaintiffs - and - The City of Edmonton, Strathearn Community League, Edmonton Federation of Community Leagues, John Doe #1, John Doe #2 and David Lochrie Defendants _______________________________________________________ Reasons for Judgment With Respect to Costs of the Honourable Mr. Justice Donald Lee _______________________________________________________ Introduction [ 1 ] The Plaintiff Mr.

McNulty brought an action against the Defendants pursuant to the Occupier ’ s Liability Act (the “ OLA ” ) and in negligence under the common law for injuries he sustained falling off a deck on the premises of the Strathearn Community League (the “ SCL ” ) on August 19, 2000.

[ 2 ] After a lengthy trial lasting three weeks spread over a 4 month period, Mr. McNulty was successful only against the SCL for negligence as an Occupier under the OLA . The Court in written Reasons dated May 3, 2011, now reported at 2011 ABQB 297 dismissed the claim against the Defendants, the City of Edmonton (the “ City ” ) and David Lochrie ( “ Mr. Lochrie ” ), concluding that they were not Occupiers under the OLA , nor were they negligent under the common law. The SCL was found liable for 50% of the damages while Mr.

McNulty bore liability for the remaining 50%. [ 3 ] There is no dispute among the parties as to the general principles that govern the assessment of costs and it is agreed that costs in this case should be assessed on the basis of

Schedule C, Column 3 of the Alberta ’ s Rules of Court , Alta. Reg. 124/2010 . Nor is there any issue that the Defendant SCL, should pay costs to Mr. McNulty on a party-party basis. My decision was silent on the exact present value of future cost of care, however the parties were directed by the Court to follow the Letter of Dr. Jenkins dated May 4, 2011, and they have agreed to the amount of $18,951. Furthermore, the parties have agreed to a calculation for pre-judgment interest for all heads of damages in the sum of $47,505.12. [ 4 ] The unsettled issues are: – (

a) The effect of the Offer to Settle made to the Defendants by Mr. McNulty; (

b) The successful Defendants ’ (the City and Mr. Lochrie) entitlement to costs and disbursements; and (

c) The Defendants ’ right to costs and disbursements for what they argue was the unnecessary days of trial. Double Costs [ 5 ] The Plaintiff served the Defendants with a global Offer to Settle on August 31, 2011 (the “ Offer ” ). The Offer was given to The City of Edmonton, Strathearn Community League, Edmonton Federation of Community Leagues, John Doe #1, John Doe #2 and David Lochrie, and required acceptance on the part of all the Defendants.

It is submitted that the Offer was not an offer which one Defendant could accept and another Defendant could have rejected. [ 6 ] The material portion of the Offer reads: – PURSUANT to Rule 170 of the Alberta Rules of Court, the Plaintiff John McNulty hereby offers to fully and finally settle this action on the following terms: 1. The Defendants shall pay to the Plaintiff, JOHN MCNULTY, the sum of $195,000 for general damages, special damages and interest; and 2. The Defendants shall pay the Plaintiff s taxable costs and disbursements. [ 7 ] Rule 10.29(1) of Alberta ’ s Rules of Court , Alta.

Reg. 124/2010 sets out the general rule for payment of costs. Specifically it entitles a successful party to a costs award against the unsuccessful party subject to the Court ’ s general discretion under Rule 10.31.

Section 10.29(1) states: – 10.29(1) A successful party to an application, a proceeding or an action is entitled to a costs award against the unsuccessful party, and the unsuccessful party must pay the costs forthwith, notwithstanding the final determination of the application, proceeding or action, subject to (

a) the Court ’ s general discretion under rule 10.31, (

b) the assessment officer ’ s discretion under rule 10.41, (

c) particular rules governing who is to pay costs in particular circumstances, (

d) an enactment governing who is to pay costs in particular circumstances, and (

e) subrule (2). [ 8 ] Rule 10.31(1), provides broad discretion to the Court with respect to costs: – 10.31(1) After considering the matters described in rule 10.33, 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, or (

b) any amount that the Court considers to be appropriate in the circumstances; including, without limitation, (

i) an indemnity to a party for that party ’ s lawyer ’ s charges, or (ii) a lump sum instead of or in addition to assessed costs. [ 9 ] Rule 10.31(1) directs the Court to consider the factors set out under Rule 10.33: – 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 unnecessarily separated 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. [ 10 ] Rule 4.29(1) sets out the general rule entitling a plaintiff to double costs if the plaintiff makes a formal offer to settle that is not accepted and subsequently obtains judgment that is equal or more favourable to the plaintiff at trial:-- 4.29(1) Subject to subrule (4), if a plaintiff makes a formal offer to settle that is not accepted and subsequently obtains a judgment or order in the action that is equal to or more favourable to the plaintiff than the offer, the plaintiff is entitled to double the costs to which the plaintiff would otherwise have been entitled under rule 10.31(1)(

a) or 10.32 for all steps taken in relation to the action or claim after service of the offer, excluding disbursements. [ 11 ] Rule 4.29(1) requires a plaintiff seeking to invoke the costs sanctions specified in the Rule to recover a judgment that is better than that which was offer to the defendants prior to trial. [ 12 ] The Defendants cite Allen (Next friend of) v. University Hospitals Board , 2000 ABQB 965 , where the plaintiffs sued four doctors alleging negligence. The lawsuit was successful against two of the doctors and unsuccessful against two others.

The successful defendants sought double costs as a result of a formal offer presented by all the defendants to the plaintiffs. The Court found that the

offer had not been bettered in its entirety as the plaintiffs had been successful against two of the defendants at trial. [ 13 ] It is submitted that likewise Mr. McNulty failed to better his Offer at trial as the Offer presented to the Defendants was not divisible to allow one Defendant to accept the Offer and another Defendant to reject it – it was conditional on liability being assessed against all the Defendants. Prior to trial, the Defendants proposed to discontinue the claim without costs against the City but the Plaintiff refused. Double Costs - Conclusion [ 14 ] At trial Mr.

McNulty only obtained judgment against the SCL and his claim against the City and Mr. Lochrie was dismissed. Double costs are available under Rule 4.29(1) only if the plaintiff beats his formal offer at trial. As Mr. McNulty only had partial success at trial, it is submitted that he is not entitled to double costs against the SCL pursuant to Rule 4.29(1). [ 15 ] All of the Defendants were represented by the same counsel, and there was only one Statement of Defence on behalf of all the Defendants which was filed June 23, 2003.

There was a separate Affidavit of Records of the Edmonton Federation of Community Leagues and the SCL, a separate Affidavit of Records of the City of Edmonton, but apparently no Affidavit of Records of David Lochrie who I gather had no documents to disclose in any event.

With one Counsel defending all of the Defendants, there were no Notices of Contribution or Third Party Notices against or between each of the Co-Defendants. [ 16 ] Exhibit 1, Tab 23 in the Agreed Book of Exhibits at trial contains the March 3, 2000, Agreement between all of the Defendants, which at paragraph 28 indicates that the SCL shall maintain at its expense a $2,000,000.00 general liability insurance policy and the City of Edmonton and the Edmonton Federation of Community Leagues are both additional named insureds under the policy.

In the Plaintiff ’ s submission counsel for all of the Defendants answered to only one insurer and they all had a mutual interest in defending this claim since paragraph 29 of the Agreement indicates that the SCL should indemnify and save harmless the City from any and all liability, costs, damages, etc.

There is an express contractual agreement that the SCL would pay any costs incurred by the City with respect to any litigation or claims made against the City as a result of any Acts or negligence of the SCL and it expressly includes “ any injury to a person ... from the use or occupation of the site and facilities ” . [ 17 ] Although employees of the SCL are not named in this agreement it is likely that David Lochrie did not sign a separate retainer agreement with counsel for the rest of the Defendants, and that the Defence of Mr. Lochrie was paid for by the SCL since David Lochrie was one of volunteers. Mr.

Lochrie did not likely expend any monies for his own defence and probably never gave any strategic instructions to counsel for the Defendants. The Plaintiff submits that all such instructions presumably came from either an Insurance Adjuster or a Claims Manager as a united front. [ 18 ] When the Formal Offer for $195,000.00 was submitted to counsel for the Defendants, there were apparently no overtures made by any of the Defendants to accept that offer on behalf of any one of the specific Defendants, in exchange for a Release against the rest of them.

If any of the Defendants had offered to settle for $195,000.00 plus costs, the Plaintiff surely would have discontinued against the other Defendants upon receipt of the funds, as the money is all the Plaintiff really cared about. He would not concern himself about who he received the money from. The response of the Defendants was to serve their second Formal Offer of $35,000.00 all inclusive again on behalf of all the Defendants, although just prior to trial the Plaintiff was requested to discontinue his claim against the City without any costs penalty. [ 19 ] In Allen v.

University Hospital Board cited by the Defendants, the plaintiff did receive double costs even though the plaintiff won only against two of the four doctors, as stated therein at paragraph 25 to 28 which reads: – 25 On the issue of double costs on the basis of beating the offer, such is quite clearly covered in Rules 170 and 174 and as such the plaintiff is entitled to double costs unless there is some "special reason". 26 The defendants submit that double costs in this case is not viable since there was agreement on the damages.

The agreement on damages came part way through the trial and in effect reduced the length and complexity of the case. The end result of agreeing on damages is that costs to the litigants was reduced. However, agreement on damages in my view is not a special reason sufficient for the

Court to exercise discretion to deprive a successful plaintiff of the fruit of Rules 170 and 174, given that the policy underlying theformulation of the rule is to encourage settlement, vide Forster v. MacDonald (1996), 1995 ABCA 431 , 35 Alta. L.R. (3d) 319(C.A.) at p. 320. 27 The last issue relating to double costs is that the defendant seeks double costs on behalf of the successful defendants Drs. Chariand Muir, as a result of an offer made in February 1999.

This offer of judgment was predicated upon a dismissal of the plaintiffs actionagainst the four doctors and, where applicable, their professional corporate entities. 28 This offer then included all the medical doctor defendants and was conditional in my view on a dismissal against all. Thedefendants only partially beat the offer and therefore were not successful to the extent contemplated. Hence, in my view there ought notto be double costs where the offer in its entirety was not bettered. An example of this approach can be observed in Zwicker v. Schubertand Karam-Dad, [1999] 184 Sask.

L.R. 35 in particular para. 45 at p. 50. [20] In addition, Justice Perras in Allen ordered a Bullock Order if it was necessary such that the unsuccessful Defendants pay thecosts of the successful Defendants, at paragraph 18 which reads:– 18 In terms of the Order it is my view that a Bullock Order is appropriate with respect to the costs of Dr. Muir in defending himself.Dr. Muir attended upon Daana Allen very late in the game and therefore a great deal of the evidence would be generally applicable to hisdefence. Therefore the unsuccessful defendants ought to reimburse the plaintiffs for Dr.

Muir’s costs. [21] The purpose of the double costs rule is to reduce claims and increase the possibility of settlement. In this case, there wasreally only one defendant at risk and that was the SCL and its insurer. The SCL had a legal obligation to indemnify and save harmless theCity of Edmonton. Since only the one defendant was really at risk and the Offer succeeded against that party, they should pay the doublecosts to the Plaintiff. Since the defendants were really only one party wearing several hats, it does not make a material difference that theOffer was addressed to all of the Defendants.

Costs of the Successful Defendants The City and Mr. Lochrie [22] The second issue is whether the City of Edmonton and Mr. Lochrie are entitled to costs and if so, what should be the amountof those costs, and who should pay these costs. [23] The successful Defendants (the City and Mr. Lochrie) request their costs for successfully defending the distinct issues withrespect to the claims brought against them by Mr. McNulty in accordance with their Bill of Costs, reduced by 50% to take into accountthat the Defendants were represented by one counsel. [24] The Plaintiff argues that the City of Edmonton and Mr.

Lochrie are not really independent defendants as they had nothing atrisk by being in the lawsuit because of the SCL’s legal obligation to indemnify them. They should not according to the Plaintiff beentitled to separate costs as it would simply be a mechanism for the insurance company behind the policy to recover some of its fees anddisbursements, and the costs would never be applied to any fee account of these Defendants. [25] This is supported in the Plaintiff’s view if one reviews the Bill of Costs that was tendered on behalf of the two successfulDefendants which has approximately $45,800.00 in disbursements.

In the Bill of Costs submitted by the Plaintiff there are approximately$36,000.00 in disbursements. The Plaintiff argues that the successful Defendants have more disbursements than the successful Plaintiff,so their Bill of Costs is attempting to achieve a recovery of disbursements on a 100% basis on behalf of the unsuccessful Defendant theSCL. [26] It is submitted that it was reasonable for the Plaintiff to name all of the Defendants and keep them in the lawsuit in order to

“ thresh out ” the factual and the legal issues among the various Defendants. The Plaintiff did discontinue against the Federation of Community Leagues. It is submitted that Moore v Weinecke 2008 ONCA 162 is not an appropriate case by analogy as there were was two different motor vehicle accidents, four years apart, and therefore it was not an appropriate situation for a Sanderson Order. In this case, the City owned the land and Mr. Lochrie built the deck. They were appropriate parties to sue and discover.

The City did do some supervision over the lands by attending meetings and reviewing the plans for the renovation of the hall. The Plaintiff argues that the costs to the successful Defendants should therefore be paid by the unsuccessful Defendant SCL as the SCL is legally responsible to indemnify the City in any case. Should the Successful Defendants Receive Any Costs - Conclusion [ 27 ] The Plaintiff claimed that the Defendants, the City and Mr. Lochrie, were liable as Occupiers under the OLA , or alternatively, liable in negligence under the common law. At trial I dismissed the claims against the City and Mr.

Lochrie as being without any merit. [ 28 ] Where a plaintiff recovers judgment against one of several defendants and the action is dismissed against the others, the successful defendants are normally entitled to costs against the plaintiff, as the Ontario Court of Appeal stated in Moore v. Wienecke at para. 37 : – In a multiple-defendant case in which the plaintiff succeeds against some defendants but not against others, the “ normal course ” is for the unsuccessful defendant to pay the plaintiffs costs and the plaintiff to pay the successful defendant ’ s costs: see Mark M.

Orkin, The Law of Costs , 2e ed., looseleaf (Aurora Ont.: Canada Law Book, 1987) at 2-108. [ 29 ] With respect to the Costs of this trial, however not every day or half day dealt with the defence of the City of Edmonton and Mr. Lochrie. In the Bill of Costs submitted by the Plaintiff ’ s each half trial day demonstrated who the witnesses were. [ 30 ] Since both successful Defendants were represented by the same counsel, I reduce any award to them by 50%. I award 50% party and party costs to Mr. Lochrie and to the City on those days for which Mr.

Lochrie or the City ’ s officer testified, as well as 50% costs for all pretrial matters and for final submissions. Also those disbursements unique to the Defence of Mr. Lochrie or the City of Edmonton would be eligible for recovery. These costs can be assessed by the Assessment Officer. [ 31 ] The next decision arising is since these successful Defendants are entitled to costs, should a Sanderson Order or a Bullock Order be issued in this case?

A Bullock Order derives its name from Bullock v London General Omnibus Co. , [1907] 1 K.B. 264 (C.A.) , and assumes that the plaintiff acted reasonably in suing more than one defendant but has not been successful against all of them. The Bullock Order would require the Plaintiff to pay the costs for the successful Defendants but permits the Plaintiff to include those costs in the costs he recovers from the unsuccessful Defendant the SCL. A Sanderson Order would direct the unsuccessful Defendant the SCL to pay the costs of the successful Defendants directly.

Conclusion - Whether or Not the Plaintiff Will Obtain Relief From Paying Costs [ 32 ] The issue here is whether or not the Plaintiff will obtain relief with respect to the costs, or some portion thereof awarded against them, relating to the successful Defendants, from the unsuccessful Defendant. [ 33 ] The general test is this: – 1. Was it reasonable for the Plaintiff to join the successful Defendants given the circumstances?

2. Is there any good reason to deprive the successful Defendants of costs? and 3. Was the unsuccessful Defendant vis a vis the successful Defendants wholly responsible for the action? [34] This test is commented on at paragraphs 7 to 16 of Allen is as follows:– 7 The "reasonableness" requirement was stated in Bullock, was approved in Besterman v. British Motor Cab Company, Ltd. [1914]3 K.B. 181 [hereinafter "Besterman"], and has been followed in Canadian jurisdictions as the threshold question for determining if aBullock or Sanderson order should be granted.

In Bullock, Collins M.R. stated at 269: The common sense underlying this order is clear, because the learned judge when he made it had before him evidence that, owing to theattitude taken up by the General Omnibus Company, it was reasonable for the plaintiff to join the other defendants [my italics]. The evidence referred to by Collins M.R. showed that the unsuccessful defendant, the General Omnibus Company, had blamed the otherdefendant, a cart driver, for the plaintiff's injuries, which were caused by a collision between the bus and cart.

Collins M.R. explainedwhen joining two defendants is reasonable at 271: The application of r. 4 [permitting joinder of defendants] to a particular case does not arise upon proof of a joint or other wrong, but uponthe state of mind of a plaintiff who does not know exactly whether an injury of which he complains arose from the joint act of twoparties or the sole act of one or other of them. 8 In Besterman, Vaughan Williams L.J. cited Cozens-Hardy L.J. in Bullock for his statement that before a defendant will be orderedto bear another defendant's costs, the court must find that it was reasonable to join the successful defendant.

In Vaughan Williams L.J'swords the test is, at 186-187: Under these circumstances, was it a reasonable thing for the plaintiff in this action against a man who ultimately turns out to be in factthe wrong-doer to join the other defendant in order that the matter might be thoroughly threshed out? If, in the circumstances, it was areasonable thing to do, then he was entitled to add as part of the costs in bringing this reasonable action in which he reasonably joinedthis other person the costs of that other person who is found not to be at fault.

All Canadian jurisdictions have incorporated this "reasonableness" test. For example, in B.C.'s leading case on Bullock and Sandersonorders, Robertson v.

North Island College Technical and Vocational Institute (1980), (BC CA), 26 B.C.L.R. 225; 119D.L.R. (3d) 17 (C.A.) [hereinafter "Robertson"], Lambert J.A. held that the reasonableness test is the threshold question in the inquiry.In B.C., the court must find that it was reasonable for the plaintiff to join the unsuccessful defendant in the action, before proceeding toexercise its discretion to make a Bullock or Sanderson order. 9 The P.E.I Court of Appeal followed Robertson for its framework of analysis, in Rayner v. Knickle [1992] P.E.I.J. No. 31.

InOntario, the test from Besterman is also used, for the principle that Bullock and Sanderson orders are available when it was reasonablefor the plaintiff to join the defendants [for example, in Rooney (Litigation guardian of) v. Graham [1998] O.J.

No. 2722]. 10 In regards to the second aspect of the test when Sanderson and Bullock were decided, the requirement that there be "good cause"for depriving a successful defendant of costs was found in Order LXV., r. 1, and read as follows: Subject to the provisions of the Acts and these rules, the costs of and incident to all proceedings in the Supreme Court...shall be in thediscretion of the Court of judge...provided...that, where any action...is tried with a jury, the costs shall follow the event, unless the judge

by whom such action...is tried, or the Court, shall, for good cause, otherwise order. 11 "Good cause" was not specifically addressed in Bullock or Besterman, which were decided subsequent to Sanderson. The issuehad arisen in Sanderson because of the successful defendant's conduct. Romer L.J. stated at 539: Of course, in exercising the jurisdiction [to make this type of order for costs], a judge should have regard to the circumstances of thecase, and be satisfied that it is just that the unsuccessful defendant should, either directly or indirectly, have to pay the costs of thesuccessful defendant.

In the present case I do not think that I myself should have given to the defendant Hope, having regard to hisdefences and conduct, any costs whatever, either as against the plaintiff or co-defendant. However, Romer L.J. held that because no one had raised this issue before the judge, he could not overturn the decision to award thesuccessful defendant costs.

He found, at 540, that because they did not raise it, the plaintiff and co-defendant must have agreed that therewas no good cause for depriving the successful defendant of costs. 12 In my view it is unnecessary to frame the second stage of analysis in the terminology of the rules of the King's Bench Division ofEngland. By requiring that there be "good cause" to deprive the successful defendant of costs, the Alberta courts seem to be merelyidentifying a circumstance that would justify a court's exercise of discretion to deny a Bullock or Sanderson order.

This factor could becaptured within a broader inquiry, by simply requiring that a judge "be satisfied that it is just that the unsuccessful defendant should,either directly or indirectly, have to pay the costs of the successful defendant" as Romer L.J. put it in Sanderson. This is closer to theapproach in B.C., where the second step in the analysis is the judge's exercise of discretion. This discretion is the court's inherentjurisdiction to determine costs, and is described in Robertson by Lambert J.A. as follows: It is a true discretion.

Whether he grants a Bullock order, or not, must depend on his assessment of the circumstances of the case. In myopinion it is inappropriate to trammel that discretion by endeavouring to extract principles from those cases where the discretion wasexercised and from those cases where it was refused.

The threshold question must be answered affirmatively; the discretion must beexercised judicially; and that is all. 13 Possibly, the "good cause" criterion limits the circumstances in which a judge can deny a Bullock or Sanderson order, therebyrestricting the power of the court to exercise its discretion when making an order for costs.

It is my view that this stage of the test, asarticulated in Alberta courts, ought to be viewed as providing a guide for the "judicial" exercise of discretion rather than dictating it. 14 Having regard to the third aspect of the three point test, this issue was not considered by the judges in Bullock or Sanderson,although in the circumstances of both cases, the unsuccessful defendants were liable for the whole of the damages.

Stirling L.J. did statethe following in Sanderson, which was quoted by Cozens-Hardy L.J. in Bullock at 272: The costs so recovered over by the plaintiff are in no true sense damages, but are ordered to be paid by the unsuccessful defendant, onthe ground that in such an action as I am considering those costs have been reasonably and properly incurred by the plaintiff as betweenhim and the last-named defendant. Nor was a "wholly liable" requirement discussed in the case cited, Rudow v. Great Britain Mutual Life Assurance Society (1891), 17 Ch.D. 600.

In that case, the issue was whether an insolvent defendant was liable for the full amount of costs owed to the Plaintiff, given thatinsolvency proceedings were underway. The comment by Jessel M.R. that was referred to in MacLeod v. Great West Distributors Ltd. (AB KB), [1941] 3 W.W.R. 827 was made in the context of explaining the proper form of the order, not to limit theavailability of the order. 15 This third requirement refers to an element of fact common to the original cases.

The requirement seems to merely state theobvious - that it would be unfair for a defendant to bear the whole of another defendant's costs if someone else was partially liable, suchas a third defendant or the plaintiff. The judges in the early cases were not required to consider what effect apportionment of liabilitymight have had on their decisions to make the order for costs. However, it appears that failure to meet the requirement does not precludea Bullock or Sanderson order, although it would probably affect the terms of the order.

For example, in Simpson, supra, Murray J. foundthat the plaintiff was one-third contributorily negligent. He stated at para. 9:

However, defendants were not wholly responsible for the action. I do not view this as an obstacle. This Court has the discretion to award the plaintiff relief for her obligation to pay the successful defendants' costs as against the unsuccessful defendants. 16 Given that the third element of the test is used to assess the form of the order rather than to determine if an order should be granted in the first instance, I believe that it is an unnecessary requirement.

Instead, it ought to be viewed as a factor to consider when apportioning liability. [ 35 ] I conclude that applying these principles to this case results in the costs of the successful Defendants being paid by the Plaintiff alone without recourse to, or contribution from, the unsuccessful Defendant the SCL. Costs for the Extra November 2010 Trial Dates [ 36 ] During the course of the trial the Court and the Defendants were surprised by evidence lead on behalf of Mr. McNulty that, contrary to the direct evidence of Mr. Lochrie, he had removed and concealed a step under the deck.

The Defendants ’ were aware from the outset of the proceeding that Mr. McNulty would take the position that there had been a step at the north side of the deck that had been removed sometime prior to his fall but it was not until Mr. McNulty ’ s daughter Pamela Bradley testified in Reply on the final day of evidence, that the Defendants heard the evidence that Mr. Lochrie had not only removed the phantom step but attempted to conceal it. In fact, Ms.

Bradley pointed to a shadow under the deck as seen in a photograph as being the missing step. [ 37 ] The Defendants had no notice to prepare a response to this evidence and consequently the trial had to be adjourned on September 17, 2010 until November 2, 2010 to allow the Defendants an opportunity to prepare and obtain a rebuttal expert.

As a result the trial was prolonged by three days from November 2, 2010 to November 4, 2010 with respect to resolving this contested potentially important factual issue. [ 38 ] It is submitted that the Defendants ’ recover their costs for the extra days of trial of $5,400 plus disbursements for a total of $9,656.50 for the expert reports of Brian Thicke of Anderson & Anderson Engineering Inc. ($7,292.00) and Kelly Redinger of Redhaus Photograph ($2,362.50). Furthermore, the Defendants submit that the Mr.

McNulty ’ s costs and his disbursements should be reduced for these extra days, which they have assessed to be $5,400 in costs, and $9,814.26 for the Sintra Engineering Inc. invoice dated November 17, 2010 as per Mr. McNulty ’ s Bill of Costs. [ 39 ] The Plaintiff acknowledges that the Invoice from Sintra Engineering dated November 17, 2010, totals $9,814.28 but points out that this covered all of the trial work, not just the matters dealing with the photographs. The Invoice dealt with the preparation for trial, initial trial testimony, the construction of the model, further attendances at the site, etc.

This is important in the Plaintiff ’ s view because the Defendant submits two disbursements, one for Red House Photograph of $2,382.50 and Anderson & Associates for $7,294.00, a total almost as much as the final Sintra Engineering bill when the Defendants experts were only retained with respect to the phantom missing step. [ 40 ] The Plaintiff argues that Pamela Bradley was not a party, and was never examined for discovery. When the trial opened, Pamela Bradley was the first witness to testify and she was cross-examined. It was only on the identification issue with David Lochrie that she was recalled.

In addition, Ms. Bradley was not the only witness to indicate that the phantom step had been pushed under the deck. This was also the evidence of the Plaintiff himself and also the evidence of his friend, John Stewart Jamieson. They both indicated some evidence that they believed that the missing step had been pushed under the deck. [ 41 ] It is submitted that the Plaintiff could not foresee every detail that would come out as evidence at a trial, and often things are said by witnesses whether in direct or in cross-examination that add a new element or a new fact or perspective to the case.

That is the dynamics of a trial and they are often not in the control of either party, as they just happen because of human nature. [ 42 ] It is submitted that the Plaintiff did not do anything wrong in re-introducing Pamela Bradley in rebuttal plus there were no new photographs tendered by Pamela Bradley. They had always been available to the Defendants since the first discoveries in 2002. The

Defendants could have had them blown up or examined by anyone they wished. It is submitted that the Plaintiff did not intentionally doanything or omit something that caused the delay. Costs for the Extra November 2010 Trial Days - Conclusion [43] This phantom step issue was ultimately resolved in the Defendants’ favour as I concluded that “based on the evidence, Icannot find on a balance of probabilities that there was a step attached to the north side of the Deck prior to the Accident” (para. 65).Furthermore, I noted at paragraph 66 as follows:– The only evidence to support such a step is the assertion of Ms.

Bradley, who based it on what she believes she saw one afternoon over adecade ago. This has been contradicted by Mr. Saunders, Ms. Blair, Mr. Lochrie and Mr. Blais. It also makes little sense to me why Mr.Lochrie would have built such a freestanding step when he built permanently attached steps on the west and south sides of the Deck. Mr.Lochrie testified that he used a 1x6 painted board to cover the opening on the north side of the Deck prior to the Accident. The Plaintiffsexpert, Mr.

Hughes, said this was consistent with his examination of the Deck. [44] Although costs generally follow the event, costs may be awarded by issue where the litigation of an issue prolonged the trialor evidence was introduced at the last minute to the disadvantage of the other side. In Nathu (c.o.b. Plaza Deli and Gift Shop) v.Imbrook Properties Ltd. (1992), 1992 ABCA 242 , 131 A.R. 186, the Alberta Court of Appeal commented on dividing theresponsibility of costs based on success on issue.

The Court stated as follows, at para. 9:– While costs routinely follow the event all costs are not dictated by the bottom line of recovery. Sensibly the expense of litigatingunsuccessful issues may not be recoverable, or may even be awarded to the successful opponent, notwithstanding the fact that theplaintiff succeeds on other issues. It must and does lie within the court’s discretion. The Court of Queen’s Bench Act, R.S.A. C-29 s. 19:R.601 Rules of Court. [45] In Wilde v.

Isfeld (1994), 1994 ABCA 6 , 149 A.R. 237 (C.A.), the defendant presented extended evidence andargument on a factual issue which the trial judge ultimately resolved largely in the favour of the plaintiff. The Alberta Court of Appealstated at para. 3, “the trial was obviously prolonged by going into that contested factual issue. It is perfectly proper to assess costs issueby issue.” [46] In Wentworth Developments Inc. v.

Calgary (City), 1998 ABQB 158, the successful defendants sought to introduce anaddendum to a report filed by their expert to the disadvantage of the plaintiff who required last minute analysis of this new informationby his expert.

The Court allowed the addendum report be admitted, but awarded the plaintiff reimbursement of any costs arising as aresult of the late introduction of the addendum report including the actual cost of having an expert review and analyze the new report,the cost of the expert making himself available to plaintiff’s counsel and to testify if required, the plaintiff’s actual disbursements andcosts on a solicitor/client basis limited to the additional legal attendances necessitated as a reason of the introduction and response of theaddendum report (para. 61). [47] I conclude that these extra days of trial were an unnecessary expense to resolve an unsupported allegation that questioned thecredibility of Mr.

Lochrie’s testimony, which the Plaintiffs own expert agreed was consistent with his examination of the deck.Therefore I award the Defendants costs and disbursements for an additional two half days of trial time and preparation (two half daysawarded for November 2 and 3, 2010) plus one full day for November 4, 2010 that were required to litigate this issue. These costs willinclude the Defendants’ costs of retaining two experts to analyse the new evidence introduced by the Plaintiff’s daughter, whoseevidence counsel for the Plaintiff father should have been well versed on from the outset.

Trial Heard on the 7th to 17th days of September, 2010, the 2nd to 4th days of November, 2010, and the 21st day of December, 2010.

Written Costs Submissions provided on the 15 th day of July, 2011 and the 19 th day of July, 2011. Dated at the City of Edmonton, Alberta this 26 th day of July, 2011. Donald Lee J.C.Q.B.A. Appearances: Terence Kulasa James H. Brown & Associates for the Plaintiff Ward Hanson Fraser Milner Casgrain LLP for the Defendants