Thoreson v. Alberta (Infrastructure), 2012 ABQB 361

Court of Queen ’ s Bench of Alberta Citation: Thoreson v. Alberta (Infrastructure), 2012 ABQB 361 Date: 20120615 Docket: 0501 02100 Registry: Calgary Between: Julia Thoreson, 360672 Alberta Ltd., and William Chow and Wai Hing Chow Plaintiffs - and - Her Majesty the Queen In Right of Alberta, as represented by the Minister of Alberta Infrastructure Defendant Corrected judgment: A corrigendum was issued on June 25, 2012; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of the Honourable Mr.

Justice J. T. McCarthy _______________________________________________________ TABLE OF CONTENTS Background........................................................................................................................ Page: 3 The Law............................................................................................................................... Page: 3

Analysis............................................................................................................................... Page: 6 Category A - Reviewing or Repeating Previous Counsels’ Work.................... Page: 8 Category B - Appeal of 2005 Trial....................................................................... Page: 8 Category C - Communications Among Plaintiffs’ Own Counsel...................... Page: 8 Categories D and E...............................................................................................

Page: 8 Category F - Case Management......................................................................... Page: 9 Category G - Application to Split Trials............................................................... Page: 9 Category H - Trial Preparation. Matters.............................................................. Page: 9 Category I - Dealing With Experts........................................................................ Page: 9 Category J - Work by Paralegals.........................................................................

Page: 9 Category K - Briefs.............................................................................................. Page: 10 Category L - Researching Alberta Law and Procedure.................................. Page: 10 Category M - Trial................................................................................................ Page: 10 Category N - Judgment....................................................................................... Page: 10 Category O - Costs..............................................................................................

Page: 10 Category P - Client Management...................................................................... Page: 10 Category Q - Travel............................................................................................. Page: 10 Category R - Business Loss............................................................................... Page: 11 Category S - Unrelated....................................................................................... Page: 11 Category T - Noble Shanks................................................................................

Page: 11 Category U - Robert Kerr.................................................................................... Page: 11 Category V - Planning Protocol.......................................................................... Page: 11 Category W - Wernick Omura Limited.............................................................. Page: 11 Category X - Law Firm Disbursements and Expenses................................... Page: 11 Category Y - Thoreson Out of Pocket Expense................................................

Page: 12 Category Z - Chow Out of Pocket Expenses.................................................... Page: 12 Category AA - Adjustments and Corrections................................................... Page: 13

Summary............................................................................................................... Page: 13 Conclusion........................................................................................................................ Page: 14 Background [ 1 ] The expropriated land owners (the “Plaintiffs”) are claiming costs relating to a seven day trial which took place in May of 2010. The amount of the claim is $850,571.00. The only issue dealt with at trial was the value of the Plaintiffs’ lands that were expropriated by the expropriating authority (the “Crown”).

The trial in May, 2010 was the second trial on the above-noted issue. The first trial was held in 2005 and included other issues. The issue regarding land value was sent back for a new trial by the Court of Appeal

in 2007. It is important to note that no document production or examinations for discovery are included in the costs claims of thePlaintiffs because these things happened before the first trial. [2] The Defendant Crown submits and I agree that given the previous trial and appeals, the issue at trial, mainly the marketvalue of the lands, was well tilled and well sifted. The costs claimed include the fees of at least nine lawyers in five different law firmsand relate mostly to the 2010 trial. Three lawyers participated in the trial. Two of them actively participated.

These were not the firstlawyers to represent the Plaintiffs and advance issues related to, among other issues, the value of lands. [3] Since 2004, at least 10 law firms and over 20 lawyers have acted for the Plaintiffs in these expropriation proceedings alongwith several appraisers and other experts.

The reimbursable costs of the prior lawyers, appraisers and experts have been determined eitherby the Court or by agreement and paid by the Crown. [4] The Plaintiffs’ claim for full legal costs for the following: Robert Kerr (2006) - services unknown Nobel Shanks (2005 to 2010) - various legal services Fasken Martineau - R. de Waal, A.

Kotkas and others (2008 to 2010)-preparation for trial Chinook Country Law Office - Brett Barclay (2010 trial) Patterson Law Office - Douglas Caldwell and Robert Pineo (2010 trial) The Law [5] The Plaintiffs’ rely on the Expropriation Act, RSA 2000 c E-13, s.39(1): Costs 39(1) The reasonable legal, appraisal and other costs actually incurred by the owner for the purpose of determining the compensationpayable shall be paid by the expropriating authority, unless the Board determines that special circumstances exist to justify the reductionor denial of costs. [6] The Plaintiffs’ submit and I agree that s.29(3) allows the owners to elect to have compensation fixed by the Court and in thatcase, the provisions of the Act relating to determination of compensation of the Board apply with all necessary modifications toproceedings before the Court. [7] The leading expropriation decision regarding costs in Alberta is Nissen v.

Calgary (City), 1983 ABCA 307 , 1983CarswellAlta 217. In Nissen Justice Kerans stated as follows about costs under the Expropriation Act: 13 There is but one unique consideration that must be brought to bear in the taxation of accounts in such circumstances. The client,because he knows he never need pay the bill, might not act reasonably. ... [8] The Court of Appeal in Nissen also held that the former Rule 613 of the Alberta Rules of Court applies to determiningreasonableness of costs under the Expropriation Act. This rule states: 613.

Barristers and solicitors are entitled to such compensation as may appear to be a reasonable amount to be paid by the client for theservices performed having regard to

(

a) the nature, importance and urgency of the matters involved, (

b) the circumstances and interest of the person by whom the costs are payable, (

c) the fund out of which they are payable, (

d) the general conduct and costs of the proceedings, (

e) the skill, labour and responsibility involved, and (

f) the other circumstances, including, to the extent hereinafter authorized, the contingencies involved. [ 9 ] In Slemko v. Red Deer (City) , 1991 CarswellAlta 852, 45 L.C.R. 102 the Alberta Land Compensation Board stated in part as follows: 53 In its deliberations as to the reasonableness of the “N” costs, the board had in mind the caution of Mr. Justice Kerans in the Nissen case, quoted above. In the board’s opinion, Mr. Justice Kerans was referring to the client who has in the back of his mind that payment for legal or appraisal services is not to be out of his pocket but rather the public purse.

The court of Appeal was identifying and warning of the potential for excess in cases where costs are not the burden of the affected individual(s). 54. This case identifies, in the board’s opinion, another equally “unique consideration” in the expropriation process - that of counsel, as agent for the client, who knows that his bills will be paid and who therefore is tempted to provide excessive legal services to that client. The Board is of the opinion that Mr. Walsh behaved, in this instance, in just such a manner. [ 10 ] In Humenuk v.

Alberta 1986 CarswellAlta 486,(Q.B.) Court of Queen’s Bench following a compensation hearing considered costs and denied a previous firm’s legal costs among other things on apparent basis of duplication and excessiveness. The court found that an inordinately large amount of time was spent on the preparation for and conduct of the hearing which was compounded by the changing of counsel by Plaintiffs. [ 11 ] With regard to Legal Accounts where there has been more than one counsel of record, “The New Law of Expropriation”, by John A. Coates and Stephen F.

Waque (Carswell) states as follows: ...Where the claimant changed solicitors, the whole of the first solicitor’s account was disallowed, except for disbursements. In another case where the owners changed solicitors a deduction was made of only about 10 per cent for the time spent by the second law firm in obtaining the file plus some other work that was not pursuant to the Expropriation Act . Where two counsel appeared on behalf of the claimant, the board disallowed the time of the second lawyer on the basis of duplication of effort.

The Board noted that both counsel were qualified expropriation lawyers and reduced the fee claimed by 30 per cent presumably on the theory that only one counsel was needed and a second counsel represented duplication. Where the board found no merit in a claim for injurious affection, the fee was reduced by 25 per cent on the ground that an experienced counsel should have recognized that no injurious affection to the parcel had occurred. Counsel was similarly penalized where he called the owner to give evidence of market value where the owner possessed no special expertise as an appraiser or other professional.

The same counsel suffered a further reduction for not having properly instructed his appraiser... In another case, where success was divided, the board reduced the legal account on the ground that counsel must share in the failure to establish the foundation for a quantification of the claim. Where claimant failed to provide details of claimed disbursements, all the disbursements were disallowed. Where the claimant was awarded compensation in excess of $2,000,000, the board criticized the “team approach” where it is taken to the point that it results in duplication of effort and therefore duplication in costs.

The account was presented in the amount of $322,000 and was reduced to $165,000. [3.4 Legal Accounts Reduced, pages 15-43 and 15-44] [ 12 ] With regard to expert accounts, these authors state as follows as well: Experts’ account will be reduced for many of the same reasons that lawyers’ accounts are reduced, that is to say, where the Board concludes that the hours charged are excessive, or where the evidence given is of little assistance to the Board, where the expert’s

reasoning or his or her conclusions are found to be flawed, or where the expert should have recognized, as an experienced professional,that no viable claim could be made, the account may be reduced or even disallowed entirely. See Southland Canada Inc. v. Calgary(City) (1990), 44 L.C.R. 27, 1990 CarswellAlta 785 (L.C.B.), at page 36; Merlin v. provost (Municipal District) No. 52 (1993), (SCC), 49 L.C.R. 276, 1993 CarswellAlta 94 (L.C.B.), at pages 296-298; Gustafson v. Alberta (1987), (sub nom.

Gustafson v.R.) 38 L.C.R. 180, 1987 Carswell Alta 766 (L.C.B.) At pages 185-187, additional reasons to (1987(), 37 L.C.R. 45, 1987 CarswellAlta765; Tessier v. Millet (Town) (1987, (sub nom. Tessier v. Millet (Town) (No. 2)) 37 L.C.R. 157, 1987 CarswellAlta 760 (L.C.B.), at pages161-163, additional reasons to (1986), 34 L.C.R. 146, 1986 CarswellAlta 765; and Semeniuk v. St. Mary River Irrigation District (1987,37 L.C.R. 152, 1987 Carswell Alta 759 (L.C.B.), at pages 155-156.

Indeed, in the Southland case, supra, at page 31, the board stated thata solicitor or other expert, consultant or appraiser, can property by assessed by reference to Rules 613 and 635 of the Alberta Rules ofCourt, Alta. Reg. 390/68 [replaced by the Alberta Rules of Court, Alta. Reg. 124/2010, in force November 1, 2010]. ...Similarly, where the expert pursues an approach which is of no assistance to the Board, time spent on this approach will be disallowed. [3.7 Appraisal or Other Experts’ Accounts Reduced or Disallowed p. 15-46] [13] In Lorenz v.

Lloydminster (City) (No. 2), 1982 CarswellAlta 982 the accounts of a local solicitor and separate counsel retainedfor the hearing were reduced because of duplication and overlapping work. [14] In Bartle & Gibson Co. v. Edmonton (City) 1992 CarswellAlta 833 the court took issue with the “team approach” taken byseveral counsel. Analysis [15] The Crown submits that after backing out GST, HST, and correcting obvious mathematical errors, the net claim for costs is inthe amount of $773,956. The Crown divided the Plaintiffs’ net claim for costs into certain categories and grouping which in my viewmake sense.

These groupings are set out as follows with the Crown’s position set out with regard to each category: Plaintiffs’ Claim $ Crown’s Position $ A. Reviewing or Repeating Previous Counsels’ Work 63,342.33 6,400.00 B. Appeal of 2005 Trial 30,945.72 1,600.00 C. Communications Among Plaintiffs’ Own Counsel 14,202.70 1,600.00 D. Counsel Communicating with Own Clients 19,322.13 19,322.13 E. Communicating with Opposing counsel 3,712.56 3,712.56 F. Case Management 11,259.00 3,840.00 G. Application to Split Trials 36,979.00 16,960.00 H. Trial Preparation 130,991.36 35,840.00 I. Dealing with Experts 66,932.63 24,000.00

J. Work by Paralegals 7,762.25 - K. Briefs 74,334.90 32,000.00 L. Researching Alberta Law and Procedure 10,704.20 6,400.00 M. Trial 60,603.27 35,840.00 N. Judgment 4,528.39 3,680.00 O. Costs 6,207.80 3,200.00 P. Client Management 1,065.00 - Q. Travel 6,565.00 - R. Business Loss 2,084.50 - S. Unrelated 536.00 - T. Noble Shanks 51,000.00 - U. Robert Kerr 4,226.00 - V. Planning Protocol 94,684.00 35,000.00 W. Wernick Omura Limited 40,000.00 20,000.00 X. Law Firm Disbursements and Expenses 18,482.86 1,100.99 Y. Thoreson Out of Pocket Expenses 35,611.84 29,411.64 Z.

Chow Out of Pocket Expenses 265.11 265.11 AA Adjustments and Corrections (22,393.00) - TOTALS 773,955.54 280,172.43 [ 16 ] The total legal fees set out by the Plaintiffs in their bill of costs is $552,038.75. The total number of recorded hours worked by lawyers is in the amount of 1,644.35 hours for an average rate rounded up of $320.00 per hour which is approximately the average rate of the two lawyers Mr. Caldwell and Mr. Pineo who represented the Plaintiffs at trial. Mr.

Barclay was present for the Plaintiffs at trial but did not actively participate in the trial. [ 17 ] In the case at bar, it is in my view, reasonable to have two lawyers representing the Plaintiffs interest at trial rather than three, even though the Plaintiffs may ultimately be responsible for the paying of fees of three lawyers, depending on private arrangements made between the Plaintiffs and their counsel. The question the Court has to decide in this application is whether the public purse should pay for the costs of two lawyers or three at trial.

In this case I find that it should be two lawyers at an average rate of $320.00 per hour. [ 18 ] Category A - Reviewing or Repeating Previous Counsels’ Work . With regard to category A in the above-noted chart, the

Plaintiffs claim $63,342.33 for reviewing or repeating work of previous counsel. The Crown has expressed concerns about the number of lawyers who have worked on the file, the number of times reviewing the work done, the time spent reviewing the trial and reviewing the court of appeal materials. I agree that 193 hours of reviewing previous work in the amount of $63,342.33 is excessive and not reasonable. Forty hours is a reasonable time for review in this circumstance at a cost of $12,800.00.

It should be noted that this amount is double the amount that the Crown proposed. [ 19 ] Category B - Appeal of 2005 Trial . After the first trial the Plaintiffs appealed that decision and retained Borden Ladner Gervais. They took that appeal and were successful in part on the appeal. After that the Plaintiffs changed counsel again but before the Judgment had been entered. The account for fees for the Borden Ladner Gervais firm was paid by agreement between the parties. The parties could not by agreement settle the terms of the Judgment Role.

An application to settle the terms of the Judgment Role was made by the Crown. Written submissions were made by the parties. In its brief direction as to what should be in the Judgment Role, the Court of Appeal directed exactly what the Crown submitted with regard to settling the Judgment Role. The Plaintiffs propose that the amount of $30,945.72 be allowed to clarify the Judgment Role. This is largely an administrative issue. As it turns out, it was largely an unnecessary expense incurred by the Plaintiffs since their position was rejected by the Court of Appeal and the Crown’s position was accepted.

In any event, the amount claimed for this administrative matter is grossly excessive and unnecessary. I agree with the Crown’s submission that much of the work done with regard to this category and the fees rendered were unnecessary. Settling the terms of the Judgment Role should have been straight-forward. Therefore the amount of $2,000.00 is allowed under this category. [ 20 ] Category C - Communications Among Plaintiffs’ Own Counsel . The time spent by various counsel communicating with each other where the subject matter of the communication is not indicated or recorded.

These charges arise as a result of numerous counsel reviewing each other’s communication and watching each others work. The substantive work is billed for elsewhere. Therefore a reasonable amount under this category is twelve hours being $3,840.00. This is more than double what the Crown has proposed. [ 21 ] Categories D and E appear not to be disputed by the Crown so these amounts are allowed as reasonable. [ 22 ] Category F - Case Management .

Much time is claimed under this category for arranging and attending at case management meetings, communicating with the trial coordinator and filing documents with the Court. I agree with the Crown’s submissions that some of this time should have been handled by support staff i.e. filing documents, calling the trial coordinator. An amount of $5,000.00 is allowed under this category as being reasonable. It should be noted this amount is more than what the Crown proposes. [ 23 ] Category G - Application to Split Trials .

This matter deals with the Plaintiffs application to sever the matter of business loss that the Plaintiffs allegedly suffered. This application was granted by Justice Brooker. He indicated that if the parties did not agree on costs they could go back to him so this matter should properly be heard by him. Therefore no amount is awarded at this time because it will be dealt with later by Justice Brooker. [ 24 ] Category H - Trial Preparation. Matters under this category do not deal with entries for reviewing the previous trial, or with previous expert reports, or with experts, or with research.

These are dealt with elsewhere. Matters under this category deal with strategy, organizing materials, preparing questions and opening remarks. It should be noted that most of the issues that were before the Court in this trial were dealt with at the previous trial. In particular, the effect of the RDA and the requirement that the parties address and deal with the question of what would happen if the RDA had not been there were dealt with at the first trial. These issues are the same. The difference between the two trials is two-fold: 1) the experts are different; and 2) the issues are fewer in this trial.

I agree with the Crown’s submission that experienced, knowledgeable expropriation counsel would not need close to 400 hours to prepare for this trial. Two lawyers spending six hours a day for trial preparation for 10 days would amount to 120 hours of preparation. Therefore an amount of 120 hours and $38,400.00 is allowed as being reasonable under this category. [ 25 ] Category I - Dealing With Experts . In addition to time spent preparing for trial in category H, 191 hours was spent in dealing with experts. Again, the issues they dealt with were not unique.

The effect of the RDA surrounding Calgary has been at issue for some time and has been dealt with by the Courts on a number of occasions. I agree with the Crown’s submissions that 75 hours is a reasonable amount of time for experienced counsel: 1) to brief experts; 2) to review the Crown’s expert’s reports; and 3) to prepare experts for trial. It should be noted as well that although there were separate reports prepared for each of the Plaintiffs, each report was largely identical to those of the other. Therefore an amount of $24,000.00 is allowed for this item.

This seems reasonable. [ 26 ] Category J - Work by Paralegals . Eighty-one hours is being claimed for work by Paralegals. Most of the time entries state “filed data management” and “summation scanning”. Although I am concerned about the lack of detail in these accounts, most

particularly when one considers that the Plaintiffs were not examined for discovery, nor did they produce any new documents that were not available at the first trial, the amount claimed for paralegal time does not appear to be excessive and is allowed in the amount of $7,762.25. The Plaintiffs are getting the benefit of the doubt on this item. [ 27 ] Category K - Briefs . The Plaintiffs filed a short pre-trial brief, a post trial brief and a short rebuttal brief. Two hundred and forty hours of legal work is claimed to prepare these briefs. This amount is excessive.

The Crown submits and I agree that 120 hours i.e. $38,400 is a more reasonable figure particularly where hours under this item do not include researching Alberta law and procedure which is dealt with elsewhere. [ 28 ] Category L - Researching Alberta Law and Procedure . This research was apparently needed by counsel for Nova Scotia who are unfamiliar with Alberta law and procedure. This matter has had many previous counsel for the Plaintiffs who were familiar with Alberta law and procedure. It is not reasonable for the Plaintiffs to be paid for new counsel to learn Alberta law and procedure.

As well research which should have been done by previous counsel with regard to these matters should have been available to counsel from Nova Scotia thereby making the duplication of effort unnecessary. It should be noted there are many very good expropriation lawyers in and around the City of Calgary and in the Province of Alberta. Therefore nothing is allowed under this category. This is less than what the Crown has proposed. [ 29 ] Category M - Trial . This is the time spent for three lawyers attending the seven day trial and for preparation on those days.

Three counsel attended and recorded time, two counsel actively participated. In my view a reasonable amount of time is 10 hours per day for seven days for two counsel which total 140 hours being $44,800.00. Research, preparation and dealing with experts are all captured elsewhere. Again it should be noted that the $44,800.00 is more than what the Crown’s position is. [ 30 ] Category N - Judgment . The amount claimed under this item is time spent reviewing the reasons for judgment, advising clients, administering payment of judgment funds and preparing and filing a notice of appeal.

The time spent relating to appealing the trial is not appropriate here and therefore the amount is reduced to $3,680.00 which is a reduction of 2.2 hours of time under this category. The parties were not too far apart on these costs. [ 31 ] Category O - Costs . This is for the bill of costs and this hearing. The legal fees associated with that are $6,200.00 which is largely the result of gathering the various lawyers’ bills and preparing a

schedule of the various expenses. Twenty-seven hours with the lawyers time is not reasonable especially when there is a considerable amount of money being claimed by Mrs. Thoreson pertaining to those same functions. The amount of 10 hours being $3,200.00 is allowed under this item. [ 32 ] Category P - Client Management . This item is for time entries where it appears that lawyers are talking to their clients about their retainers or terms of their engagement. The amount of 3.9 hours for $1,065.00 is allowed which is what the Plaintiffs’ time records reflect. [ 33 ] Category Q - Travel .

The Crown submits that the time claimed for travel to and from Alberta from and to Nova Scotia where the two trial counsel live should not be allowed. I agree for the reason set out previously in “Category L” herein. Therefore nothing is allowed under this category. [ 34 ] Category R - Business Loss . The represents time spent preparing for the business loss claim which is now the subject of a separate trial and should be dealt with at that time. [ 35 ] Category S - Unrelated . These items appear to be inadvertently unrecorded to the file and are unrelated to the matter at hand.

The amount of 1.8 hours at $536.00 is not allowed. [ 36 ] Category T - Noble Shanks . This is a claim for 170 hours at $51,000.00. No detailed time records have been provided so it is difficult to allocate to certain categories. The bill indicates that 30 hours were spent with regard to post-trial proceedings leading to appeal. The bill also indicates that 75 hours were spent on cost recovery in consultation leading to a new trial. Both of these items relate to the previous appeal of the matter and to the trial judge’s cost award. The Crown advises that both of these items have been settled and paid.

The final part of the bill reads as follows: 2009 - 2010 counsel for new trial, time 65 hours, rate $300.00, $19,500. There are no further details provided and there should be if the public is expected to foot the bill as it is in this case. Furthermore the fact that the Plaintiffs chose to change counsel represents an unreasonable duplication of services and for these two reasons nothing is allowed under

this item. It should be noted that the Plaintiffs may still be responsible for accounts of this type depending on the terms of the retainer that they have with counsel. However, it is not reasonable to expect the public should be required to pay for an account for which no details are provided. [ 37 ] Category U - Robert Kerr . There are no details given for this account. Without details it is not reasonable for it to be paid for by the public. The Plaintiffs do have the burden of putting forward some sort of evidence to support what the account is.

Therefore nothing is allowed under this category. [ 38 ] Category V - Planning Protocol . Plaintiffs are entitled to a reasonable amount for a planning expert however, $94,000.00 is not a reasonable amount. The same issues were dealt with at the first trial. The Crown submits that at the first trial there were two experts, one dealing with engineering issues and one dealing with planning issues and together their accounts were approximately $35,000.00. In looking at the accounts of planning protocol, there are two accounts - one for each of the Plaintiffs. They are almost identical.

Furthermore, the reports were seriously flawed. Despite acknowledging that the development of the subject lands depended on assessing both costs and demand, Planning Protocol did neither. It was therefore of limited assistance to the Court. An amount of $30,000.00 is allowed under this item as being reasonable. [ 39 ] Category W - Wernick Omura Limited . The Plaintiffs are entitled to a reasonable amount for an expert appraiser. Mr. Omura prepared two reports. The amount claimed is $40,000.00 being $20,000.00 each.

The appraiser appraised the land on the basis that the lands were fully serviced and fully developed. They were not and again the report was of limited assistance to the Court. The amount of $20,000.00 is allowed as being reasonable under this category. [ 40 ] Category X - Law Firm Disbursements and Expenses . The Plaintiffs claim $18,482.66 under this category.

The following amounts are NOT allowed for the same reasons given under Category Q and Category L: Travel 3,004.85 Airfare 1,850.23 Hotel 5,431.26 Meals 2,501.29 Long Distant Phone 231.03 Delivery 1,071.31 Total $14,089.97 Photocopying claim charges of $2,791.90 are excessive and are reduced to $1,200.00. Therefore the amount of $18,482.86 claimed under this category is reduced with the above-noted adjustments to $2,800.99 which is a reasonable amount. [ 41 ] Category Y - Thoreson Out of Pocket Expense . This claim is for $35,611.84. The largest amount claimed under this item is $19,997.50 for Mrs.

Thoreson’s claim at $50.00 per hour for her time to prepare and attend the trial. Land owners time may be compensable but there has to be some relation to business activities and as such this part of her claim is deferred to be dealt with through evidence at the trial for business loss. Thoreson’s claims for mileage at $1.25 per kilometer is grossly excessive. Fifty point five cents per kilometer is a reasonable rate for a proper mileage claim of 3,860 kilometers times .505 equaling $1,999.80. Thoreson has put in a claim for an office assistant at 112 hours at $30.00 per hour. This is not reasonable.

No evidence has been put forward as to what the office assistant did. If she was putting together the claim for costs, there have already been a number of hours from lawyers charged to put together the bill of costs in a previous category. In the absence of any further details, a nominal amount of 10 hours at $30.00 per hour is allowed for $300.00 for the amount allowed as reasonable. For out of pocket expenses is as follows: 564.33 Meals and beverages

1,949.30 Mileage 1,810.90 Parking 521.41 Photographs 138.82 Phone/fax/cell 928.88 Mail/shipping 300.00 Office assistant at 10 hours x $30.00 $6,213.64 Total [ 42 ] Category Z - Chow Out of Pocket Expenses . Are accepted at $265.11. The Plaintiff Chow’s out of pocket expenses are allowed at $265.11. [ 43 ] Category AA - Adjustments and Corrections . The Crown has submitted that adjustments and corrections should be deducted in the amount of $22,393.00. I agree. [ 44 ] In

Summary , the amounts allowed are as follows: Plaintiffs ’ Claim $ Crown ’ s Position $ Amount Allowed $ A Reviewing or Repeating Previous Counsels ’ Work 63,342.33 6,400.00 12,800.00 B Appeal of 2005 Trial 30,945.72 1,600.00 2,000.00 C Communications Among Plaintiffs ’ Own Counsel 14,202.70 1,600.00 3,840.00 D Counsel Communicating with Own Clients 19,322.13 19,322.13 19,322.13 E Communicating with Opposing counsel 3,712.56 3,712.56 3,712.56 F Case Management 11,259.00 3,840.00 5,000.00 G Application to Split Trials 36,979.00 16,960.00 - H Trial Preparation 130,991.36 35,840.00 38,400.00 I Dealing with Experts 66,932.63 24,000.00 24,000.00 J Work by Paralegals 7,762.25 - 7,762.25

K Briefs 74,334.90 32,000.00 38,400.00 L Researching Alberta Law and Procedure 10,704.20 6,400.00 - M Trial 60,603.27 35,840.00 44,800.00 N Judgment 4,528.39 3,680.00 3,680.00 O Costs 6,207.80 3,200.00 3,200.00 P Client Management 1,065.00 - 1,065.00 Q Travel 6,565.00 - - R Business Loss 2,084.50 - - S Unrelated 536.00 - - T Noble Shanks 51,000.00 - - U Robert Kerr 4,226.00 - - V Planning Protocol 94,684.00 35,000.00 30,000.00 W Wernick Omura Limited 40,000.00 20,000.00 20,000.00 X.

Law Firm Disbursements and Expenses 18,482.86 1,100.99 2,800.99 Y Thoreson Out of Pocket Expenses 35,611.84 29,411.64 6,213.64 Z Chow Out of Pocket Expenses 265.11 265.11 265.11 AA Adjustments and Corrections (22,393.00) - TOTALS 773,955.54 280,172.43 267,261.68 Conclusion [ 45 ] The costs claimed in this matter are excessive because of the huge amount of time spent on various matters during the course of preparing for and attending at the second trial. The number of times the file has changed hands and the number of people involved in the file has resulted in duplication of work.

Heard on the 21 st day of December, 2011. Dated at the City of Calgary, Alberta this 15 th day of June, 2012.

J. T. McCarthy J.C.Q.B.A. Appearances: Robert H. Pineo for the Plaintiffs Tim Mavko for the Defendant _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Mr. Justice J.T. McCarthy _______________________________________________________ Page: 1 Delete: Thoreson Insert: Julia Thoreson