Forsberg v. Naidoo, 2011 ABQB 705

Court of Queen ’ s Bench of Alberta Citation: Forsberg v. Naidoo, 2011 ABQB 705 Date: 20111117 Docket: 0203 17011 Registry: Edmonton Between: Wayne Forsberg, Shirley Forsberg, Kimberlee Berkeley, Christopher Berkeley, Her Majesty the Queen in the Right of Alberta, and Wayne Forsberg and Shirley Forsberg Carrying on Business As a Partnership Under the Name and Style of Forsberg & Forsberg Plaintiffs - and - Dr. Dadi B. Naidoo Defendant _______________________________________________________ Costs Decision of the Honourable Mr. Justice D.R.G. Thomas _______________________________________________________ 1.

Introduction .......................................................................................................... Page: 2 2. Law ......................................................................................................................... Page: 2 3. Costs Associated with Other Defendants .................................................... Page: 3 4. Disbursement for Non-Current Medical Textbooks ................................... Page: 5 5. Experts Who Did Not Testify or Provide Reports ....................................... Page: 5

6. Expert Loss of Income ....................................................................................... Page: 6 7. Photocopying Costs .......................................................................................... Page: 6 8. Consultation on Home Modification Costs .................................................. Page: 7 9. Conclusion ........................................................................................................... Page: 8 1. Introduction [ 1 ] The trial decision in this matter ( Forsberg v. Naidoo , 2011 ABQB 252 [the “ Judgment ”]) concluded that Dr.

Naidoo was negligent and caused injury to Wayne when he failed to administer in a timely way broad spectrum antibiotics to treat a meningitis infection. In the Judgment I defined a number of terms which are used again in this costs decision. [ 2 ] The parties now return to address certain costs issues which remain in dispute. 2. Law [ 3 ] This Court has a broad authority to order a litigation party pay costs to other parties: Alberta Rules Of Court , Alta Reg 124/2010 [the “ Rules ”, or individually a “ Rule ”].

Rule 10.33 identifies a range of considerations that may be relevant to an award of costs: 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. [ 4 ]

Schedule C of the Rules provides a baseline for cost awards to the successful party. The parties do not dispute that in this instance costs are awarded using Column 5 of

Schedule C. 3. Costs Associated with Other Defendants [ 5 ] The Plaintiffs initially named other Defendants including the Capital Health Authority, the Leduc Hospital and various hospital employees. Dr. Ahmed Hussein was added as a Defendant after Dr. Naidoo indicated that Dr. Hussein had provided advice on treatment for Wayne’s condition: Judgment , at para. 28. [ 6 ] All Defendants other than Drs. Naidoo and Hussein were dropped from this Action prior to trial. The claim against Dr. Hussein was discontinued by consent on October 4, 2010, which left Dr.

Naidoo as the sole Defendant. [ 7 ] The Defendant now argues that he should not be liable for: 1. costs that flow from questioning hospital employees and Dr. Hussein, 2. court reporter expenses associated with that questioning, 3. the $1500.00

Schedule C item for review of opposite party documents, and 4. the disbursement for serving the additional Defendants. [ 8 ] This scenario is analogous to that in Wainwright (Town) v. G-M Pearson Environmental Management Ltd. , 2008 ABQB 446 at para. 32 , 447 A.R. 346, varied in part on other grounds 2010 ABCA 23 , 316 D.L.R. (4th) 81. In that decision I concluded that the plaintiff could recover the cost of “lengthy discoveries” of employees of a named defendant against whom the Action was later

discontinued. The defendant in question was identified and then dropped as pleadings evolved. An award of costs for expenditures associated with this defendant were appropriate as: ... it was reasonable to add it as a party in an attempt to fill the significant information gaps about the nature of [a dangerous material] and the way in which it had been handled. [ 9 ] This aspect of the cost award in Wainwright (Town) v. G-M Pearson Environmental Management Ltd. was not varied by the Court of Appeal. [ 10 ] I conclude the same approach is appropriate in this instance.

The Plaintiffs suggest it was reasonable, if not necessary, to investigate hospital personnel and Dr. Hussein, and their roles in the injuries suffered by Wayne. I agree. [ 11 ] The person or persons responsible for Wayne not receiving antibiotics was not immediately obvious, particularly in light of a poorly explained notation in the hospital records which mentions the broad spectrum antibiotic Cefuroxime: Judgment , at paras. 59-60, 72-73, 76, 84. In short, it was not immediately obvious to the Plaintiffs who was at fault.

Questioning to clarify that point and other events surrounding Wayne’s treatment was reasonable. [ 12 ] Similarly, the questioning of Dr. Hussein was reasonable. My conclusion at trial was that Dr. Naidoo breached his standard of care when he failed to administer antibiotics immediately after Wayne was examined: Judgment , at para. 154. The evidence of Dr. Naidoo was that Dr. Hussein had advised against immediate antibiotic treatment, and if so then Dr. Hussein was also negligent. [ 13 ]

Schedule C includes a cost tariff for “review of opposite party documents”. The Defendant questions the allowance of a full $1500.00 amount for the hospital staff defendants. The Plaintiffs note that the Leduc Hospital affidavit of records included documents with a total of over 1000 pages. That volume of apparently relevant information warrants the

Schedule C “review of opposite party documents” cost item. [ 14 ] The Defendant observes that Dr. Hussein’s affidavit of records lists no documents, and therefore argues that there is no basis for a

Schedule C cost award in his case for “review of opposite party documents”; i.e., there were no documents to review. The Plaintiffs respond that Dr. Hussein did provide a number of memos in respect to an undertaking but the Plaintiffs do not indicate the volume or nature of that documentation. [ 15 ]

Schedule C includes the following notation: If there are only a few records requiring a limited amount of time to review, the fee may be reduced. Since the Plaintiffs have not provided specific information on Dr. Hussein’s memos I will reduce this costs item to $500.00. [ 16 ] In

summary, I conclude that the Plaintiffs were justified and reasonable to add the hospital staff and Dr. Hussein as Defendants. Other than the $1,500.00 amount claimed to review the documents of Dr. Hussein’s, the questioning, the document review, and the service costs are reasonable. The Defendant will pay the amounts claimed by the Plaintiffs in relation to Defendants other than Dr. Naidoo, less $1,000.00. 4.

Disbursement for Non-Current Medical Textbooks [ 17 ] The Plaintiffs claim a $348.36 disbursement for purchase of the specific editions of medical texts available on the date when Wayne was examined and treated by Dr. Naidoo. The Defence argues these items will become part of a reference collection owned by the Plaintiffs’ law firm and are therefore an “overhead expense”.

[ 18 ] Technical materials such as medical textbooks are not the kind of resource routinely referenced by lawyers. Further, these texts were old, out-of-date editions that were purchased second hand, and not a current reference material. These acquisitions are reasonable and the Defendant will pay for this disbursement. 5. Experts Who Did Not Testify or Provide Reports [ 19 ] The Plaintiffs retained two experts who did not testify at trial or provide expert reports. Dr. Stephen Trzeciak was retained to comment on septic shock and respond to the defence experts who were called, namely, Drs. Nicholle and Pattullo.

Dr. Jadavji was the first medical expert consulted by the Plaintiffs in regard to Wayne’s treatment, and he provided what may be described as a preliminary investigation of the possibly negligent treatment. [ 20 ] The Defendant argues these experts were unnecessary as their expertise overlapped with that of Dr. Gold, the Plaintiffs’ expert on Neisseria meningitidis infection and disease. As such, these disbursements are inappropriate. Further, the Defendant observes that in Wainwright (Town) v. G-M Pearson Environmental Management Ltd.

I concluded that an explanation is required for an expert’s disbursement where that expert does not testify or provide a report. [ 21 ] Here the Plaintiffs have provided an adequate explanation for these two experts who did not provide evidence to the Court. Dr. Jadavji is reported to have conducted a first-tier screen of the medical evidence and records. That kind of ‘reconnaissance’ is quite understandable where a party and their counsel must address unfamiliar, technical, and complex subjects.

Lay persons, and that category includes lawyers, cannot be expected to review medical records and immediately identify what specific kind of narrow expertise would provide the most useful information and commentary. An expert whose work assists in narrowing the field of inquiry is a reasonable litigation expense. [ 22 ] As for Dr. Trzeciak, the Defendant reports he billed a total of $800.00. Even if Dr. Trzeciak’s expertise and evidence overlapped with that provided by Dr. Gold, the Plaintiffs’ expenditures which flow from this expert are small. Dr. Gold’s invoices total $21,209.02.

I will allow this disbursement given its modest scale and the realistic possibility that a second expert may make a novel contribution. To be more explicit, if the cost of this disbursement had been larger, I would not have allowed it without a more detailed explanation of why this expert did not give evidence at trial, specifically: 1. the anticipated relevant area of expertise, 2. how that expertise was expected to be relevant for this case, and 3. why that expertise did not prove relevant at trial. [ 23 ] The costs associated with Drs. Trzeciak and Jadavji will be paid by the Defendant 6.

Expert Loss of Income [ 24 ] Dr. Simon Lewin, the family doctor of Wayne and Shirley, testified as to their health before and after Wayne was injured by Dr. Naidoo’s negligence. The Plaintiffs claim a $2,006.20 disbursement for Dr. Lewin’s travel to and from Salmon Arm, British Columbia, overnight accommodation, meals, and $1,000.00 for loss of income. Dr. Lewin testified for half a day, and on that basis the Defendant argues for a $500.00 reduction in the loss of income component of Dr. Lewin’s account.

[ 25 ] I take judicial notice that it is highly unlikely that Dr. Lewin could have scheduled his travel to and from Edmonton in a manner that would have allowed him to testify for half a day and then work the remainder at his Salmon Arm clinic. If the $1,000.00 loss of income is for a day’s work, and I have no evidence that is not the case, then the Plaintiffs’ disbursement for Dr. Lewin is reasonable and appropriate. This claim is allowed. 7.

Photocopying Costs [ 26 ] The Defendant complains that the $17,070.30 photocopying claim is excessive, and instead suggests $5,100.00, based on 34,000 pages and a $0.15 per page cost. The Defendant argues that value is appropriate and cites Dechant v. Law Society of Alberta , 2001 ABCA 81 at para. 24 , 203 D.L.R. (4th) 157, V.A.H. v. Lynch; H. (V.A.) v. Lynch; Huet v. Lynch , 2001 ABCA 37 at para. 48 , 277 A.R. 104, and Huet v. Lynch , 2001 ABCA 211 at paras. 2-9 . [ 27 ] I am uncertain that these Court of Appeal cases provide a general rule on the cost per page of photocopying.

Two years later the Court approved a $0.25 per page rate in Love v. Flagstaff (County of) Subdivision and Development Appeal Board , 2003 ABCA 302 at para. 7 , 29 Alta. L.R. (4th) 41. Arguably that sets the standard rate, if there is one. Further, in Dechant v. Law Society of Alberta at para. 24 the Court expressly indicates that a photocopying disbursement should reflect actual invoiced cost: Ms. Dechant asks for an award of 25 cents per page for photocopying rather than the 15 cent award made in Huet. In our view, she is entitled to all reasonable disbursements, and copying is a legitimate disbursement.

If she can prove that she has paid 25 cents a page to some arm ’s length person, the fee should be allowed . Otherwise we order 15 cents a page. [Emphasis added.] [ 28 ] More recently Justice Romaine in Schmolzer v. Higenbottan , 2009 ABQB 616 at para. 9 , 18 Alta. L.R. (5th) 79 directed that the current per page rate used by Calgary taxing officers was appropriate.

I agree with this approach, which takes into account the expertise of these judicial officers and provides a consistent treatment for litigants. [ 29 ] As for the number of copied pages, reconstructed by the Defendant at 68,000, I note this matter is what Smith, J. in Klemke Mining Corp. v. Shell Canada Ltd. , 2007 ABQB 427 at para. 46 , 159 A.C.W.S. (3d) 509 called “a document heavy case.” There, a $40,000.00 photocopying disbursement was reasonable. Here too there were many documents. The litigation continued for 11 years.

Accordingly, I conclude the quantity of photocopied pages claimed by the Plaintiffs is not excessive. The photocopying disbursement will therefore be calculated from the number of pages copied, at the current per page rate used by the Edmonton taxing officers at the date of issuance of the Judgment . 8. Consultation on Home Modification Costs [ 30 ] Ms. Mavis Andrew provided expert testimony for the Plaintiffs on Wayne’s future care requirements and associated costs.

One part of her report contained estimates of the cost to modify several potential future homes to meet Wayne’s post-injury requirements: Judgment , at para. 85. These estimates were provided by the Access Building Corporation for a $200.00 cost. [ 31 ] The Defendant appears to argue that the $200.00 amount cannot be claimed as a disbursement as the estimate document was not disclosed prior to trial. The estimates were, nevertheless, a part of Ms. Andrew’s expert report.

The $200.00 disbursement is part of the Defendant’s costs owed to the Plaintiffs. [ 32 ] The Defendant also questions whether this item was billed twice, once directly to Carscallen Lockwood LLP and then again as part of Ms. Andrew’s invoice. In response the Plaintiffs show that two estimates were provided, one in 2006 and a second revised quote dated May 12, 2010. An updated renovation quote was a reasonable expense, particularly given the volatile character of the Alberta real estate marketplace.

9. Conclusion [ 33 ] The parties may return for clarification or further explanation of any of these disputed costs items. If necessary, the costs on this application may be spoken to within 30 days of the issuance of this decision. Heard by way of written submission dated October 17 and 27, 2011 and November 4, 2011. Dated at the City of Edmonton, Alberta this 17 th day of November, 2011 D.R.G. Thomas J.C.Q.B.A. Appearances: Mr. Dale E. Johns, (Carscallen Leitch LLP) for the Plaintiffs Ms. Megan L. McMahon (Gowling Lafleur Henderson LLP) for the Defendant