Paniccia Estate v. Toal, 2012 ABQB 367

Court of Queen ’ s Bench of Alberta Citation: Paniccia Estate v. Toal, 2012 ABQB 367 Date: 20120605 Docket: 1003 07117 Registry: Edmonton Between: Angela Paniccia, as Executrix for the Estate of Lino Paniccia for the Benefit of the Estate of Lino Paniccia, Angela Paniccia, Danny Paniccia, Melissa Paniccia, Selena Waugh, Jason Paniccia, and Her Majesty the Queen in Right of Alberta Plaintiffs - and - Dr.

Stephen Toal Defendant Corrected judgment: A corrigendum was issued on June 8, 2012; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice D.L. Shelley _______________________________________________________ I. INTRODUCTION.................................................................................................... Page: 2

II. ISSUES THAT REMAIN IN DISPUTE................................................................. Page: 2 III. THE LAW................................................................................................................ Page: 3 IV. ANALYSIS.............................................................................................................. Page: 4 A. Dr. Lim Disbursement Cost...................................................................... Page: 4 B. Double Preparation for Trial Cost............................................................ Page: 5 C.

The Post-Trial September and November Hearings............................. Page: 5 D. Calculation of the Solicitor-Client Award................................................. Page: 6 E. The Informal November 26 Offer to Settle............................................... Page: 7 V. CONCLUSION..................................................................................................... Page: 12 VI. COSTS................................................................................................................. Page: 12 I.

INTRODUCTION [ 1 ] I heard this medical malpractice trial in late 2010 and released a written judgment on July 29, 2011, reported as Paniccia Estate v. Toal , 2011 ABQB 326 , 51 Alta. L.R. (5th) 299 [the “Trial Decision”]. [ 2 ] The Trial Decision sets out in detail how Mr. Paniccia developed and died of a particularly aggressive and difficult to treat form of stomach [“gastric”] cancer. I concluded that the Defendant’s negligence had caused Mr. Paniccia to die of that gastric cancer six months earlier than if he had received proper care and treatment. Mr.

Paniccia’s gastric cancer was terminal even if he had received correct treatment. [ 3 ] The parties later returned to address several disagreements that had emerged after the trial was completed. In a written decision released on January 9, 2012, reported as Paniccia Estate v. Toal , 2012 ABQB 11 [the “Follow-up Decision”], I concluded that the Defendant was obliged to pay Fatal Accidents Act , R.S.A. 2000, c. F-8, s. 8 bereavement damages, and certain disputed special damages.

In light of the late and procedurally incorrect introduction of the special damages issue, I ordered that the Defendant pay costs associated with that part of the Follow-up Decision on a solicitor-client basis (para. 117). II. ISSUES THAT REMAIN IN DISPUTE [ 4 ] Five issues remain in dispute: 1. whether the Plaintiffs may recover the disbursement associated with their expert who did not testify at trial; 2. whether the complexity of this trial warrants an elevated preparation amount;

3. how two ‘post-trial’ hearing dates (September 27, 2011, and November 24, 2011) and their associated preparation and briefs ought to be categorized; 4. calculation of the solicitor-client award made in the Follow-up Decision; and 5. the effect on costs of a pre-trial November 26, 2010 informal offer by the Plaintiffs to settle. III. THE LAW [ 5 ] This Court has a broad authority to order a litigation party to 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. [ 6 ]

Schedule C of the Rules provides a baseline for party-party cost awards to the successful litigant. The parties do not dispute that in this case Column 3 of

Schedule C is applicable. IV. ANALYSIS A. Dr. Lim Disbursement Cost [ 7 ] The Plaintiffs claim a disbursement of $3,125.00 for the services of Dr. Lim. This expert was retained to evaluate a second claim of negligence against Dr. Toal, that he had failed to detect and address a blood clot that had formed in Mr. Paniccia’s leg. The Plaintiffs explained that this clot could not have affected Mr. Paniccia’s life expectancy but instead the failure to diagnose caused additional pain and suffering. That is a claim analogous to that evaluated in Mitchell Estate v. Labow [1995] O.J.

No. 621 (QL), 54 A.C.W.S. (3d) 173 (Ont. Ct. (Gen. Div.)), affirmed [1998] O.J. No. 952 (QL), 78 A.C.W.S. (3d) 182 (Ont. C.A.) ). [ 8 ] Once Mr. Paniccia died this claim could no longer lead to any award of damages. The Plaintiffs therefore dropped the blood clot claim to shorten and simplify the trial. Dr. Lim’s testimony was no longer necessary. [ 9 ] The Plaintiffs argue that this disbursement is still recoverable, as “the expenditure was reasonable at the time it was made”: Hetu v. Traff , 1999 ABQB 826 at para. 16 , 252 A.R. 304.

The Defendant says a cost associated with an abandoned claim cannot be reasonable. [ 10 ] The issue of the disbursement cost of an expert not called at trial was recently discussed by Thomas J. in Forsberg v. Naidoo , 2011 ABQB 705 at paras. 19-23 . At para. 22 he identified three steps to evaluate an expert who was retained but did not testify: ...

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. [ 11 ] I believe the explanation provided by the Plaintiffs as to why Dr. Lim was not called meets these criteria. The Defendant will

pay the Dr. Lim disbursement amount. B. Double Preparation for Trial Cost [ 12 ] The Plaintiffs seek an award of $12,000.00 for the cost to prepare for trial. The normal cost award to prepare for trial in

Schedule C under Column 3 is $6,000.00. However, the Plaintiffs note that

Schedule C provides that the cost of trial preparation “may be varied up or down depending on the length and complexity of the trial or

summary trial.” [ 13 ] The Plaintiffs suggest this is a complex trial that warrants an elevated cost award. They highlight that, though the proceeding was shortened by the parties’ agreement on certain issues, there were nevertheless extensive written materials and pre-trial briefs. The Defendant filed three expert opinions on the standard of care close to trial. Those reports were evidence in chief, not rebuttals. [ 14 ] The Defendant responds that the current

Schedule C retains the same cost amounts as the previous version of that legislation ( Alberta Rules of Court , Alta. Reg. 390/1968 [the “ Old Rules ”]), and that the award in this case falls near middle of the Column 3 range of $150,000.00 to $500,000.00. In Evans v. Sports Corp. , 2011 ABQB 616 at paras. 61-62 , Graesser J. denied an adjustment to a cost award on that basis. The Defendant also notes that the complexity in the trial is reflected in the second counsel claim, which was not disputed. [ 15 ] I conclude that an elevated court preparation award is appropriate in this case.

The documentary evidence was substantial. The expert evidence was extensive, detailed, and multifactoral. That expert evidence was often interrelated. The trial was of significant length; however the complexity of the issues before the court is, to some extent, under-reflected in the number of days of trial. [ 16 ] The Defendant will pay $12,000.00 in costs for

Schedule C item 10, the cost to prepare for trial. C. The Post-Trial September and November Hearings [ 17 ] The parties dispute the character of the September 27 and November 24 hearings [the “Post-Trial Hearings”]. The Plaintiffs suggest these two court attendances and their associated submissions ought to be treated as additional trial days:

Schedule C, item 11. The Defendant argues these were chambers applications, and should be valued under

Schedule C, item 8(1). [ 18 ] The dispute that led to the Post-Trial Hearings, and the evolution of the issues involved in those hearings is explained in the Follow-up Decision at paras. 1-22. When the parties first arrived they argued what was, in effect, a contract dispute, which involved

interpretation of a pre-trial agreement on damage calculation, the meaning of at-trial conduct, and the potential implications of various communications between the parties. Ultimately, it was unnecessary to address the meaning of that agreement (para. 108), though I did conclude that, if I had been required to interpret the agreement, I would have concluded that the Defendant had breached it (paras. 109- 112). [ 19 ] A second issue at the Post-Trial Hearings involved what, if any, special damages were due to the Plaintiffs.

I concluded that the manner in which the Defendant raised that issue was unfair, an attempt to re-open the trial, and an abuse of process as litigation by installment (para. 106). The “application” necessarily involved disputed facts (para. 90). [ 20 ] The special damages component of the Post-Trial Hearings was clearly a post-trial attempt to (improperly) argue a trial issue without following the appropriate procedure provided by Rule 9.13(b). That better falls into the

Schedule C, item 11 category. Similarly, the contract dispute would have evolved into a trial if I had not identified a question of law that resolved that claim: Follow-up Decision, at paras. 42-80. I therefore agree with the approach taken by the Plaintiffs, and assess costs for the Post-Trial Hearings as additional trial days. [ 21 ] However, the Follow-up Decision (at para. 117) does address the issue of costs for the special damages component of the Post-Trial Hearings. I ordered that those costs be paid on a solicitor-client basis. The amounts suggested by the Plaintiffs for the Post-

Trial Hearings will be adjusted to prevent ‘double recovery’ of the cost to the Plaintiffs to respond to the unfair attempt by the Defendant to re-open the trial and argue the quantum of special damages. That adjustment will be made later in this decision. D. Calculation of the Solicitor-Client Award [ 22 ] The parties also dispute how to calculate the solicitor-client cost award of the Follow-up Decision. The Plaintiffs suggest $13,000.00. Counsel for the Plaintiffs explained how this amount was derived.

As the Plaintiffs’ action was conducted on a contingency basis, the lawyers’ file records did not include detailed indications of time committed to the individual issues addressed in the Post-Trial Hearings. Plaintiffs’ counsel estimated that the special damages issue required about 1/3 of the time during preparation for the Post-Trial Hearings. [ 23 ] The total amount ‘at risk’ in the special damages claim was $46,235.79.

The contingency agreement between the Plaintiffs and their lawyers is that the lawyers would receive 35% of any award, meaning that the litigation cost of this issue to the Plaintiffs is $16,182.52. This provides a ‘full indemnity baseline’ to evaluate a solicitor-client cost award. The Plaintiffs therefore suggest that the $13,000.00 amount is a reasonable award. [ 24 ] The Defendant argues that the Plaintiffs’ assessment overstates the time required to prepare for the special damages component of the Post-Trial Hearings. A 5% proportion is suggested.

The Defendant reviewed the amount of text in the Plaintiffs’ submissions that addressed the special damages issue, and the extent to which related argument was found in the hearing transcripts. Those arguments were limited, involved no analysis, and in total only one case authority was cited.

The Defendant suggests that a $5000.00 special damages solicitor-client cost award is reasonable, particularly as the Plaintiffs will receive party-party costs on the Post-Trial Hearings as a whole. [ 25 ] My conclusion is that whatever amount is awarded on a party-party basis in relation to the Post-Trial Hearings will need to be adjusted to prevent double recovery. Some part of the preparation and hearings was dedicated to the special damages issue.

If I were to award solicitor-client costs for the special damages issue, and also the full party-party costs for the Post-Trial Hearings, then the Plaintiffs would receive costs for the special damages argument in two separate ways. My conclusion is that the Post-Trial Hearing costs addressed in the previous

section will need to be reduced by the time and resources committed to the special damages issue. Returning to the submissions above, the Plaintiffs suggest that value is 1/3, the Defendant 1/20. [ 26 ] I am not persuaded that a ‘word count’ approach will necessarily reflect the time required to identify, analyze, and explain a particular issue. Some very complex analyses may ultimately be reduced to a simple but insightful maxim or principle. Similarly, some issues may require a mass of text but involve little research or analysis.

The ‘accounting’ aspects of a costs application could be a good example of the latter. [ 27 ] Adapting the Defendant’s scheme to the Follow-up Decision produces an interesting result. A total of 56 paragraphs (paras. 26-82) were devoted to the Fatal Accidents Act argument, while 24 paragraphs (paras. 83-107) address the special damages issue. Interestingly, that means that the special damages issue took up about 30% (by paragraph) of the analysis conducted in response to the arguments advanced by the parties in the Post-Trial Hearings. That is very close to the proportion suggested by the Plaintiffs.

This observation does not necessarily mean that the proportion of a decision dedicated to a specific issue is a precise (or appropriate) way to evaluate the commitment of time and resources to that issue. However, that observation may be a reasonable way to test which party has more accurately evaluated the relative effort and preparation required for the special damages issue. [ 28 ] I therefore prefer the Plaintiffs’ suggested ratio of 1/3. The Post-Trial Hearings costs award will be reduced by that amount. In Brown v.

Silvera , 2010 ABQB 224 at para., 8, 488 A.R. 22, Moen J. explained that an award of solicitor-client costs allows “for the recovery of reasonable fees which are not necessarily equivalent to a full indemnity costs.” I conclude the proposed $13,000.00 amount is therefore appropriate. E. The Informal November 26 Offer to Settle [ 29 ] The last issue is the effect of the Plaintiffs’ November 26, 2011 offer to settle. A chronology of events is helpful:

August 23, 2010 : Mr. Paniccia was in a poor and deteriorating state as a consequence of the gastric cancer. Discovery was conducted at the hospital; ‘ de bene esse ’ evidence was taken in light of the possibility that Mr. Paniccia would not survive to trial. The Plaintiffs asked if the Defendant would negotiate a settlement. That offer was refused. September 30, 2010 : Mr. Paniccia died. November 25, 2010 : The Defendant made an informal ‘Calderbank’ offer. He would agree to discontinue the action, with each party to cover its own costs.

Otherwise, the Defendant indicated he would seek double costs for the proceeding, assessed personally against Mr. Paniccia’s widow. The Defendant stated in his offer that, based on the costs of an analogous trial, double costs here would likely amount to $300,000.00. November 26, 2010 : The Plaintiffs made an informal counter-offer of $250,000.00, plus costs and disbursements. November 29, 2010 : The trial commenced. [ 30 ] Neither offer was accepted. The Plaintiffs have received an award greater than their $250,000.00 offer, and ask that the Court double the costs incurred after the date of that offer.

The Defendant argues that an informal offer made shortly before trial may not warrant elevated costs. [ 31 ] Rule 4.29 provides that a formal offer to settle will, absent “special circumstances”, lead to elevated cost awards when a litigant ‘beats their offer’. The formal offer process in the new Rules operates in the same manner as the scheme under the Old Rules : Chapell v. Canadian Pacific Railway Co. , 2011 ABQB 74 at para. 26 , 504 A.R. 361; Rubin v. Gendemann , 2011 ABQB 466 at para. 24 , 518 A.R. 128. However, the characteristics of a formal offer are different in the Rules .

A formal offer must be made at least 10 days prior to the start of trial: Rule 4.24(1)(b). The parties agree that neither the Defendant’s or Plaintiffs’ offers could, therefore, be a formal offer. [ 32 ] The question raised by the Defendant is whether an informal offer made during that 10 day period ought to affect an award of costs. “A Calderbank offer” is another name for these informal offers, after the English case Calderbank v. Calderbank , [1976] Fam. 93, [1975] 3 W.L.R. 586, [1975] 3 All E.R. 333 .

A common-law practice evolved under the Old Rules that a judge may, at his or her discretion, order double costs for any trial steps after an informal offer: McAteer v. Devoncroft Developments Ltd. , 2003 ABQB 425 at para. 44 , 340 A.R. 1; Alberta Permit Pro v. Booth , 2008 ABQB 167 at paras. 61-62 , 459 A.R. 320; Mahe v. Boulianne , 2010 ABCA 74 at paras. 7-8 , 10, 21 Alta. L.R. (5th) 277.

No costs decision to this date has considered whether the new 10 day period should apply, in principle, to all offers to settle a dispute, formal or informal. [ 33 ] Before proceeding further, I note that the Defendant has put himself in a somewhat curious position in relation to this issue. In his November 25, 2010 letter the Defendant asserted a right to double costs based on a Calderbank offer. He now argues that right was uncertain as there had been no reported decision on this since the Rules came into force. Further, his counsel now takes the position that the $300,000.00 estimate was miscalculated.

She had failed to recognize that amount included double costs for disbursements, which was incorrect, and a fair and accurate estimate would have been much lower. The same was true for the 10 day pre-trial formal offer requirement. Defence counsel says she did not know of that difference between the Old Rules and the Rules . [ 34 ] The Plaintiffs’ position is that the same principles that guided informal offers when the Old Rules were in force should apply under the Rules .

The Plaintiffs submit that the rule governing formal offers provides a specialized process that has the effect of taking away the discretion a judge otherwise has in relation to cost awards. Where the rule is not engaged the judge’s discretion remains and there is no reason to depart from the principles that have been established in relation to informal / Calderbank offers. [ 35 ] The Defendant suggests that 10 day deadline was introduced to minimize wasted pre-trial preparation and because prior to trial litigants can become ‘entrenched’ in their positions. A late offer could ‘ambush’ a litigant.

In any case, the Defendant was not unreasonable when he refused to negotiate prior to trial; the treating physician had agreed with the Defence experts. [ 36 ] Given the result of the trial, it is apparent that the Defendant was incorrect on that point. I also observe that the Defendant’s

offer was made after Mr. Paniccia had died. [ 37 ] Relevant considerations when making an order of costs include whether a party acted in a manner that would shorten an action: Rule , 10.33(1). A cost amount may be varied from the

Schedule C amounts where: the conduct of a party that was unnecessary or that unnecessarily lengthened or delayed the action or any stage or step of the action; ... a party’s denial of or refusal to admit anything that should have been admitted; Rule 10.33(2)(a-b). [ 38 ] In the Follow-up Decision, at para. 115, I concluded that any award of costs should be informed by the Rules “Purpose and Intention” principles (see also Envision Edmonton Opportunities Society v. Edmonton (City) , 2011 ABQB 29 , 507 A.R. 275).

Several are relevant to the manner in which parties litigate and resolve disputes outside the trial process: 1.2(1) The purpose of these 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.

(2) In particular, these rules are intended to be used ... (

b) to facilitate the quickest means of resolving a claim at the least expense , (

c) to encourage the parties to resolve the claim themselves, by agreement, with or without assistance , as early in the process as practicable, ...

(3) To achieve the purpose and intention of these rules the parties must , jointly and individually during an action, (

a) identify or make an application to identify the real issues in dispute and facilitate the quickest means of resolving the claim at the least expense , (

b) periodically evaluate dispute resolution process alternatives to a full trial , with or without assistance from the Court, ... [Emphasis added.]

[39] Informal / Calderbank offers are an effective mechanism to assist parties in meeting the objectives and responsibilitiesidentified in the Rules. I therefore conclude that the approach identified in McAteer v. Devoncroft Developments Ltd. and Mahe v.Boulianne remains appropriate. [40] What remains is for me to consider whether the Plaintiffs’ November 26 offer was reasonable. I believe that it was. That offercould have ended this action with considerable savings to the Defendant. The timing of the Plaintiffs’ offer is appropriate given that itwas, in effect, a counter-offer.

The Defendant’s suggestion that its case was secure is a question for appeal; the Trial Decision found Dr.Toal negligent and liable. [41] I therefore order that the Defendant pay double costs for all steps that follow the offer. In my review of the Plaintiffs’ Bill ofCosts that applies as follows: Trial Costs: (a) 9.5 days of trial, November 29-December 10, 2010; (

b) second counsel fee, 9.5 days of trial, November 29-December 10, 2010; (c) 1.5 additional trial days for the Post-Trial Hearings, September 27, 2011 and November 24, 2011; (

d) second counsel fee, 9.5 days of trial for the Post-Trial Hearings, September 27, 2011 and November 24, 2011; (

e) written arguments: at trial; (

f) written arguments: September 27, 2011 and November 24, 2011. I have reduced items (

a) and (

b) by 0.5 day as that claim appears to include activities on September 9, 2010. That predates the Plaintiffs’offer, and warrants only undoubled costs. Items (c), (d), and (

f) are doubled after a 1/3 reduction from the

Schedule C amount, asdiscussed above at para. 25. [42] Neither party commented on the interaction of the informal offer with the Follow-up Decision solicitor-client cost award. InBrown v. Silvera Moen J. commented on the appropriate approach where double costs were awarded due to a formal offer, and party at-trial misconduct warranted solicitor and own client costs. Her review of the relevant but limited case-law indicated that double solicitor-client costs are available (para. 81), but that double solicitor and own client costs are an unprecedented remedy (para. 83).

Moen J.concluded that “full indemnity” for a lawsuit that involved a contingency agreement was the share of the result that was allocated to thelawyer: para. 77; see also Max Sonnenberg Inc. v. Stewart, Smith (Can.) Ltd. (1986), (AB KB), 48 Alta. L.R. (2d)367, [1987] 2 W.W.R. 75 (Alta. Q.B.). As previously observed, in relation to the special damages award the Plaintiffs would be fullyindemnified by $16,182.52. [43] Double solicitor-client costs that exceed the cost to indemnify are appropriate where a court is expressing its disapproval andseeks to disassociate itself from some misconduct: Fullerton v.

Matsqui (District) (1992), 19 B.C.A.C. 284 at para. 23, 74 B.C.L.R.(2d) 311 (B.C.C.A.). The Alberta Court of Appeal has concluded that double solicitor-client costs are not automatically granted where atrial result is more favourable than a rejected formal offer: Boje v. Boje Estate; Boje Estate, Re, 2005 ABCA 73 at para. 39, 250 D.L.R.(4th) 271. Brown v.

Silvera (at para. 92) provides an example of where the combination of a rejected and reasonable formal offer, a“contemptuous” offer by the unsuccessful party (para. 80), and significant party misconduct (para. 67) was a basis to order costs beyondthe indemnification threshold. However, Moen J. concluded that the punitive effect was met by an order of solicitor-client costs inaddition to the solicitor and own client cost indemnity amount. [44] In the Follow-up Decision (at para. 106) I characterized the Defendant’s attempts to litigate the special damages issue as “...

unfair, an abuse of process, and contrary to the explicit trial submissions by the Defendant.” At para. 117 I concluded that the only reason full indemnity costs were not appropriate was that Rule 9.13(

b) provided a mechanism by which the Defendant could have raised the question of special damages, if a “good reason” to do had been established. That would put the onus on the Defendant. Instead, the approach taken by the Defendant forced an immediate and full response from the Plaintiffs, along with unnecessary expenditures.

The Defendant did not meet the Rules ’ general obligations for litigants. [ 45 ] I think the Defendant’s conduct in relation to the Post-Trial Hearings special damages issue is an instance where the Court should express its disapproval and seek to disassociate itself from litigant misconduct. Double solicitor-client costs ($26,000.00) do exceed the full indemnification amount ($16,182.52), but in this instance I believe that additional ‘punitive’ aspect and quantum is appropriate.

I am particularly troubled by the contents of the Defendant’s November 25 offer, which Defence counsel acknowledges is inaccurate and the tone of which is that of a threat. Both parties have an obligation under the Rules to take reasonable steps to resolve disputes outside of the trial process. That obligation is not met when what is characterized as negotiation is, instead, posturing: Brown v. Silvera , at para. 80 . V. CONCLUSION [ 46 ] By my calculations the Plaintiffs are due $121,500.00 in fees. The disbursement amounts and other charges in the Plaintiffs’ Bill of Costs are confirmed.

I invite the parties to return if my calculation is inaccurate or if they encounter difficulty in finalizing the costs for this action. VI. COSTS [ 47 ] The Plaintiffs were entirely successful on this application, and will receive their costs at the

Schedule C, Column 3 rate. Heard on the 20th day of April, 2012 Dated at the City of Edmonton, Alberta this 5 th day of June, 2012. D.L. Shelley J.C.Q.B.A. Appearances: B.A. Guido and A.W. Heil

Odishaw & Guido for the Plaintiffs V.R. Prather and A.L. Froese Bennett Jones LLP for the Defendant _______________________________________________________ Corrigendum of the Memorandum of Decision of The Honourable Madam Justice D.L. Shelley _______________________________________________________ The sentence in para. 38 has been corrected to read: Several are relevant to the manner in which parties litigate and resolve disputes outside the trial process: ...