Tan v Swyrd, 2013 ABQB 229

Court of Queen ’ s Bench of Alberta Citation: Tan v Swyrd, 2013 ABQB 229 Date: 20130419 Docket: 0903 10875 Registry: Edmonton Between: Anita Tan Respondent (Plaintiff) - and - Brad Swyrd and Kyle Halliday Applicants (Defendants) _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Thomas W. Wakeling _______________________________________________________ I. Introduction [ 1 ] This personal injury action settled on August 29, 2012.

The defendants agreed to pay the plaintiff “ $63,000.00 plus interest plus costs ” . [ 2 ] Two differences have arisen in the course of finalizing the total sum payable to the plaintiff. The defendants take the position that it is not responsible for the fees of several experts whose reports the plaintiff served on the defendants after the parties filed a request to

schedule a trial date under rule 8.4 of the Alberta Rules of Court , Alta. Reg. 124/2010 (sometimes the “ new Alberta Rules of Court ” or the “ new rules ” ). The second difference relates to the amount of trial preparation work for which the defendants are responsible under the

Schedule C tariff.

II. Questions Presented [ 3 ] What “ costs ” did the defendants promise to pay the plaintiff? [ 4 ] Do the new Alberta Rules of Court determine whether the defendants are obliged to indemnify the plaintiff for the contested experts ’ fees? Or do the old rules apply because the judge who conducted the pretrial conference before the new Alberta Rules of Court came into force directed the parties to serve experts ’ reports in accordance with Rule 218.1 of the rules which were in force at the time? Alberta Rules of Court , Alta Reg. 390/68 ( “ old Alberta Rules of Court ” or “ old rules ” ). [ 5 ] If the new rules apply, did the plaintiff comply with rule 8.4(3)(

c) when she certified, through her counsel, that all expert reports under rule 5.35 had been served, when counsel knew that was not the case? [ 6 ] If the plaintiff did not comply with rule 8.4(3)(

c) by certifying something that was not accurate, should this Court decline to order the defendants to indemnify the plaintiff for the contested experts ’ fees? [ 7 ] Is the plaintiff entitled to $1000 for “ preparation for trial ” work under item 10(1) of

Schedule C, as the defendants maintain, or $3000, as the plaintiff claims? III. Brief Answers [ 8 ] The parties agreed, on an objective assessment, that any disputes about the amount the defendants had to pay for costs would be resolved by applying the applicable court rules. [ 9 ] The new Alberta Rules of Court determine whether the defendants must indemnify the plaintiff for the contested fees. [ 10 ] A time-line directive issued before November 1, 2010 remains in force after October 31, 2010 only if the step has already been taken. If a step has not been taken, the time-line in the new rules is operative.

Because the plaintiff had not served her experts ’ reports on the defendants by November 1, 2010, she had to abide by the time frames in the new rules. These are set out in rules 5.35(2) and 8.4(3)(c). [ 11 ] Rule 8.4(3)(

c) of the new rules requires the parties to certify that they have exchanged all experts ’ reports before they sign a form 37 request to

schedule a trial date (sometimes a “ form 37 request ” ). The plaintiff ’ s counsel acknowledges in his written argument that he certified that all experts ’ reports had been served when that was not the case. [ 12 ] The plaintiff contravened rule 8.4(3) by filing this flawed form 37 request. [ 13 ] An order directing the defendants to reimburse the plaintiff for the contested experts fees would undermine the important role in the litigation process a form 37 certificate plays.

Denying costs for the contested experts ’ reports is one way of encouraging officers of the court to honour their high duty to the judicial process. A lawyer cannot certify something to be true when it is not. [ 14 ] The plaintiff is entitled to $2500 for item 10(1)

Schedule C costs. Counsel would have completed roughly sixty-five percent of his trial preparation by August 29, 2012, the date the parties settled. As this case would have turned on the comparative strengths of

the experts ’ opinions, counsel for the plaintiff had to invest the time needed to make the experts ’ evidence compelling. IV. Relevant Parts of the New Alberta Rules of Court and the Old Alberta Rules of Court [ 15 ] The relevant parts of the new Alberta Rules of Court follow: 5.35(1) If a party intends to use the evidence of an expert at trial, the expert ’ s report must be served in the sequence described in subrule (2).

(2) Unless the parties otherwise agree or the Court otherwise orders, experts ’ reports on which a party intends to rely must be served in the following sequence: (

a) the party who bears the primary onus of proof must serve on each of the other parties the report of that party ’ s expert; (

b) the other party or parties must serve their expert ’ s rebuttal report, if any, and may include in the report issues not raised in the initial expert ’ s report; (

c) the party who served the initial expert ’ s report may serve a surrebuttal expert ’ s report that responds only to the new issues raised in the rebuttal report. 8.4(1) The parties may, in Form 37, request the court clerk to

schedule a date for a trial.

(2) The request must contain at least the following information unless otherwise directed by the Court: (

a) The anticipated number of witnesses, including the number of expert witnesses; ... (

e) the certificates required by subrule (3) ...

(3) In addition to the requirements of subrule (2), the parties requesting a trial date must ... (

c) certify that any reports have been exchanged and the process described in

Part 5 , Division 2, including questioning of experts, is complete,

...

(4) If the court clerk is satisfied that that subrules (2) and (3) have been complied with, the court clerk must

schedule a trial date.

(5) If the parties cannot certify as to the matters referred to in subrule (3) but are satisfied that the matter will be completed or undertaking discharged in a timely way, the parties must so disclose and may request the court clerk to

schedule a trial date.

(6) If the court clerk is satisfied that the parties will or are likely to be ready by the proposed trial date, the court clerk may

schedule a trial date, but if the court clerk is in doubt about any matter, the court clerk must refer the matter to a judge for directions or decision. 8.6(2) A trial for which a trial date has been scheduled may not be adjourned or abandoned unless (

a) a notice of discontinuance of the action has been filed, (

b) a memorandum of settlement of the action, signed by the parties, has been filed, or (

c) the judge permits.

(3) A trial date and the period of time scheduled for the trial may be changed only with the judge ’ s permission.

(4) Subrules (2) and (3) apply whether or not the parties consent to an adjournment or to a change in the duration of the trial.

Part 15: Transitional Provisions And Coming Into Force 15.2(1) Except as otherwise provided by an enactment, by this Part or by any order under rule 15.6, these rules apply to every existing proceeding. (2) ... [E]verything done in the course of an existing proceeding is to be considered to have been done under these rules and has the same effect under these rules as it had under the former rules. 15.10 Where the time limit provided by these rules for doing anything runs from a different event than the equivalent time limit under the former rules, and on the coming into force of these rules, the thing has not yet been done, the time limit provided by these rules applies, calculated either (

a) from the event specified in these rules, or (

b) from the coming into force of these rules, whichever occurs later. [ 16 ] Rule 218.1(1) of the old rules is in this form:

218.1(1) A party intending to adduce expert evidence at a trial shall, not less than 120 days before the trial commences or such time as may be ordered by the Court, serve on the other parties to the action (

a) a statement of the substance of the evidence, signed by the expert . . . and (

b) a copy of the expert ’ s report, signed by expert, on which the party intends to rely. . . .

(3) The expert ’ s report shall be entered as evidence at the trial unless, within 60 days after service of the notice under subrule (2) or such further time as the Court allows, the other party serves a statement (

a) setting out those parts of the report which that party will not agree may be entered as evidence in writing in this way, and (

b) giving reasons why that party cannot agree. V. Statement of Facts [ 17 ] The plaintiff commenced a personal injury action against the defendants to recover damages she suffered as a result of a car accident which occurred on August 30, 2007.

Damage issues were not straightforward because of preexisting injuries attributed to an earlier car accident. [ 18 ] Counsel for the plaintiff, in an August 25, 2010 Pretrial Conference Memorandum to the Civil Trial Coordinators Office, stated that his client “ claims general damages, costs of future care for her temporomandibular joint dysfunction and damages for increased impairment of her housekeeping capacity ” .

Counsel also identified nine health care providers and expert witnesses the plaintiff ’ s counsel anticipated calling, including an orthopaedic specialist, a physiotherapist, a TMJ specialist, an occupational therapist and a labour economist. [ 19 ] Justice Moreau conducted the requested pretrial conference on September 8, 2010.

The contents of Justice Moreau ’ s pretrial conference memorandum justify the conclusion that defendants ’ counsel must have disclosed that he would call between two and four expert witnesses, one of whom was a TMJ specialist, and that plaintiff ’ s counsel must have stated that he anticipated calling nine expert witnesses. Justice Moreau ’ s memorandum stated that the parties would comply with Rule 218.1 of the old Alberta Rules of Court .

She noted that the parties had not exchanged their expert reports. [ 20 ] On January 28 and August 24, 2011, defendants ’ counsel served plaintiff ’ s counsel with two medical reports. The service letters disclosed that these reports “ were produced pursuant to Rule 5.44 of the [new] Alberta Rules of Court ” . Rule 5.44 regulates the exchange of medical reports following a requested medical examination. No claim was made that these were rule 5.35 experts ’ reports. [ 21 ] On October 4, 2011 plaintiff ’ s counsel forwarded to defendants ’ counsel for his signature a request to the court clerk to

schedule a trial date. Defendants ’ counsel, in an October 7, 2011 letter, informed plaintiff ’ s counsel that he was unable to endorse the request for a trial date:

I note that [your request to

schedule a trial date] ... does not confirm whether or not all expert reports have been exchanged. I note that during the Pre-Trial Conference, you had indicated that you would be producing an Economist as an Expert Witness. Unless there has been some oversight at my end, I do not believe that you have provided me with a copy of your Economist ’ s report. Consequently, I am not in a position to endorse your draft Request to

Schedule a Trial Date until I have had an opportunity to review your Economist ’ s report. [ 22 ] Plaintiff ’ s counsel, in his October 15, 2011 letter to defendants ’ counsel, advised that “ [w]e do not have and are not planning on obtaining . . . [an economist ’ s report]. That would only change if Ms. Tan ’ s daughter were to move out between now and the trial ” . Ms. Tan ’ s daughter had been helping with the housework. [ 23 ] Counsel must have discussed the October 15, 2011, letter shortly after it was sent.

An October 17, 2011, letter from plaintiff ’ s counsel to defendants ’ counsel enclosed a second form 37 trial date request and contained these sentences: As discussed, the Application for a Trial Date is now amended. Expert reports are no longer qualified by the word “ medical ” . I trust this removes the last impediments to your signing and returning the enclosed document. [ 24 ] The plaintiff filed a form 37 request on November 8, 2011. It confirmed that “ all expert reports have now been exchanged ” and that “ all medical examinations are complete ” .

The form 37 request revealed that the plaintiff estimated she would call nine expert witnesses and that the defendants would call two expert witnesses. No experts ’ reports had been served when the plaintiff filed form 37. [ 25 ] Plaintiff ’ s counsel delivered to defendants ’ counsel five reports before mid-February 2012 from the medical practitioners identified in plaintiff counsel ’ s August 25, 2010 memorandum to the Civil Trial Coordinators Office.

Counsel confirmed in his brief that “ they were served on the Defendant [sic] not as expert statements under Rule 5.35, but as mandated production under Rule 5.44 ” . The service of these reports followed Ms. Tan ’ s unfortunate involvement in a third accident on November 27, 2011. These new reports, according to plaintiff ’ s counsel, contained the medical practitioner ’ s opinion on the effect Ms. Tan ’ s third accident had on the injuries caused by the August 30, 2007 accident. [ 26 ] The court clerk subsequently set this action down for trial from October 15, 2012 to November 2, 2012.

All I can tell from the material before me is that this occurred after November 28, 2011 and before May 7, 2012. [ 27 ] Plaintiff ’ s counsel informed defendants ’ counsel in a May 7, 2012 letter that “ he intended to immediately start preparing for trial ” . [ 28 ] The plaintiff ’ s counsel acknowledges that the plaintiff served her rule 5.35 experts ’ reports on June 11, 2012. [ 29 ] In July and August of 2012 the plaintiff provided “ supplementary ” expert reports of the plaintiff ’ s family physician and an occupational therapist.

In an August 20, 2012 letter, plaintiff ’ s counsel disclosed three medical expert reports which the plaintiff intended to use at the appropriate time as sur-rebuttal reports under rule 5.35(1)(

c) of the new Alberta Rules of Court , even though she did not “ yet have [the Defendants ’ ] ... formalized expert reports ” . [ 30 ] The first recorded objection from defendants ’ counsel to the experts ’ reports the plaintiff served after November 8, 2011, the date the plaintiff filed a form 37 request to

schedule a trial date, came in an August 2, 2012 letter from defendants ’ counsel. Part of this letter reads as follows:

I do not think it is appropriate that you are seeking to have further expert reports incorporated into the trial materials since the Form 37 request to

schedule a trial date was completed. You may recall that at

Section 5(

b) and (

c) we declared that all expert reports had been exchanged, and furthermore that all required medical examinations had been completed. [ 31 ] Plaintiff ’ s counsel , in his August 13, 2012 reply letter, put defendants ’ counsel on notice that he disagreed with the defendants ’ “ take on our sur-rebuttal material ” . [ 32 ] On August 29, 2012 the parties settled and the defendants agreed to pay the plaintiff “ $63,000 plus interest plus costs ” . [ 33 ] Not surprisingly, given the August 2 and 13, 2012 letters, the two sides take different positions on the obligation of the defendants to indemnify the plaintiff for the experts ’ fees related to the reports of the medical experts served after November 8, 2011.

There was also a contest about the amount of pretrial preparation costs the defendants should pay under item 10(1) of

Schedule C. VI. Analysis A.

The Parties Agreed That Any Dispute About the Amount the Defendants Had To Pay for Costs Would Be Resolved by Applying the Applicable Court Rules [ 34 ] In order to determine whether the defendants agreed to reimburse the plaintiff for the fees paid to the experts for reports delivered after the plaintiff filed the form 37 request, one must ascertain the precise nature of the promise the defendants made. [ 35 ] The defendants promised to pay the plaintiff at an unspecified time “ $63,000.00 plus interest plus costs ” . [ 36 ] The plaintiff argued that the defendants had promised to pay all the plaintiff ’ s costs and that, by refusing to pay $8,432 for the contested experts ’ reports, the defendants are attempting “ to re-write the unconditional settlement made between the parties ” . [ 37 ] I disagree. [ 38 ] A promise to pay costs does not mean any costs which the promissee may claim. [ 39 ] An objective assessment of plaintiff counsel ’ s August 29, 2012, letter recording the settlement terms supports the conclusion that both counsel should have expected that, if agreement on costs could not be reached, the amount due would be determined by applying the applicable rules of court.

Professor Waddams, in The Law of Contracts 105 (6 th ed. 2010), states that the “ principal function of the law of contracts is to protect reasonable expectations engendered by the promises ” . [ 40 ] Had the parties wished to be more precise they could have identified the experts whose fees the defendant assumed responsibility for. They chose not to do so and assume the risk that the court might not adopt their position. [ 41 ] What are the governing rules? Are they to be found in the old Alberta Rules of Court or the new Alberta Rules of Court or both?

B. The New Alberta Rules of Court Apply [ 42 ] Rule 15.2(1) of the new Alberta Rules of Court stipulates that “ these rules apply to every existing proceeding ” . An existing proceeding, according to rule 15.1(a), “ means a court proceeding commenced but not concluded under the former rules ” . Ms. Tan ’ s proceeding was commenced before November 1, 2010 and it was not concluded before November 1, 2010. This makes her proceeding an “ existing proceeding ” .

None of the three exceptions listed in rule 15.2(1) applies here. [ 43 ] Just because the new rules apply does not mean that directions contained in Justice Moreau ’ s pretrial conference cease to have force after November 1, 2010, the date the new Alberta Rules of Court came into force. Rule 15.2(2) of the new rules provides that “ everything done in the course of an existing proceeding is to be considered to have been done under these rules and has the same effect under the rules as it had under the former rules ” .

A pretrial conference qualifies as a thing done in the course of an “ existing proceeding ” , which is a proceeding commenced but not concluded before November 1, 2010. Webster ’ s Third New International Dictionary of the English Language Unabridged (1971) defines “ everything ” , in part, this way: “ every thing forming a part of an aggregate <[everything] in this room belongs to me> ” . [ 44 ] What is the effect of Justice Moreau ’ s Pretrial Conference Memorandum recording the parties ’ commitment to comply with Rule 218.1 of the old rules?

Does it mean that the deadlines for filing expert reports contained in Rule 218.1 of the old rules takes precedence over the regime in the new rules? It does not. [ 45 ] Rule 15.10 of the new Alberta Rules of Court expressly addressed conflicting time lines embedded in the old and new rules and declared that new time lines supplant old time lines if “ the thing has not been done ” before November 1, 2010. As of November 1, 2010, none of the parties had served a single expert ’ s report on the other side. It follows that the deadlines in the new rules constitute the governing norm. [ 46 ]

Part 15 of the new rules justifies the conclusion that, effective November 1, 2010, the provisions in the new rules governing expert reports applied to this proceeding. C. The New Alberta Rules of Court Oblige a Litigant To Certify That It Has Served Its Experts Reports Before Filing Form 37 [ 47 ] Rule 8.4(3)(

c) of the new rules states that a party who files a form 37 request must “ certify that any expert reports have been exchanged ” and that the process described in

Part 5, Division 2, including questioning of experts, is complete. Form 37 contains a signature block for counsel. [ 48 ] This rule is designed to reduce risk that a party will seek an adjournment of a trial because a necessary expert ’ s report has not been served on another party in a timely manner. A last minute adjournment prejudices not only the parties in the action directly affected by the adjournment but potentially other litigants whose actions are trial ready. A trial date may never be used. Other actions that had back-up status may settle or the counsel or witnesses may not be able to adjust their schedules on short notice. Rule 8.4(3)(

c) protects all litigants for whom a trial date is a valuable commodity.

The fact that a very small percentage of actions are ever tried does not diminish the harm the court system suffers when a trial date is not used. [ 49 ] What does “ certify ” mean in this context? [ 50 ] Plaintiff ’ s counsel argued that a lawyer could file a form 37 request notwithstanding that his client had not served on the other party all the experts ’ reports the client intended to rely on: “ Form 37 states that ‘ all expert reports have been exchanged ’ , the [sic] fair reading of this paragraph would be that it certifies that the parties have exchanged their expert reports in their possession at the time of signing and does not as such preclude the exchange of future expert reports ” (emphasis in the original). [ 51 ] This argument is unsound.

[ 52 ] First, it completely disregards the ordinary meaning of “ certify ” . “ Certify ” , according to Webster ’ s Third New International Dictionary of the English Language Unabridged (1971), means “ 1: to attest esp. authoritatively or formally ... (b): to present in formal communication, esp. in a document under hand or seal ... (c): to confirm or attest often by a document under hand or seal as being true ... (d): to attest officially ... ” . Combining this definition and the text of rule 8.4(3)(

c) results in this conclusion: a party may file a form 37 request only if her counsel has carefully considered whether experts reports are needed and, if they are a necessary part of her client ’ s case, she has served on the other party all the experts ’ reports on which the client intends to rely at trial. A declaration that is not the product of deliberation is of no value. [ 53 ] A lawyer who signs a certificate for her client is not vouching for the veracity of the statements the other party certifies to be true. [ 54 ] Second, the argument fails to take subrules 8.4(5) and (

b) of the new Alberta Rules of Court into account: 8.4(5) If the parties cannot certify as to the matters referred to in subrule (3) but are satisfied that the matter will be completed or undertaking discharged in a timely way, the parties must so disclose and may request the court clerk to

schedule a trial date.

(6) If the court clerk is satisfied that the parties will or are likely to be ready by the proposed trial date, the court clerk may

schedule a trial date, but if the court clerk is in doubt about any matter, the court clerk must refer the matter to a judge for directions or decision. Subrules 8.4(5) and (6) explicitly direct counsel who has not exchanged all experts ’ reports to notify the court clerk of this deficiency. This information allows the court clerk to determine whether the proposed exchange time-lines are reasonable. It is the court clerk ’ s job to review form 37 and decide whether an action will be placed on a trial list. The court clerk and a judge cannot make a rational decision if parties provide inaccurate information. [ 55 ] Third, the plaintiff ’ s position fails to recognize that rule 8.4(3)(

c) calls upon counsel, in an official court document, to confirm the existence of a fact, critical to the court clerk ’ s assessment of whether an action is trial ready. Rule 8.6 of the new rules, the provision which limits the circumstances under which a trial may be adjourned, reinforces the importance of counsel's certificate. A lawyer is an officer of the court on whose word others in the court system must be able to rely in making important decisions. Legal Professional Act , R.S.A. 2000, c. L-8, s. 102(2) (a Law Society member is an officer of the Court of Queen's Bench); Rondel v.

W. , [1966] 3 All E.R. 657 , 665 (C.A.) ( “ [A]n advocate ... is a minister of justice equally with the judge ” ); Hutchinson v. Stephens , 48 E.R. 461 , 464 (Ch. 1837) (counsel perform “ truly honourable and important services ... as ministers of justice, acting in aid of the Judge before whom they practice ” ); A. Scalia & B.

Garner, Making Your Case: The Art of Persuading Judges 33 (2008) (the United States Supreme Court considers a great advocate the tenth justice); Wakeling “ The Oral Component of Appellate Work ” , 5 Dalhousie L.J. 584, 588 n. 18 (1979) ( “ As an officer of the court the advocate is obliged to play a role in the law making process ” ) & Great Australian Gold Mining Co. v. Martin , 7 Ch. D. 1 , 10 (C.A. 1877) (a statement counsel signs must be accorded the “ greatest possible respect ” ).

The Law Society of Alberta ’ s Code of Conduct declares that this concept is fundamental, recording as its first principle that a “ lawyer has a duty to carry forward on the practice of law and discharge all responsibilities to ... tribunals ... honourably and with integrity ” . As one would expect, the Code of Conduct appreciates that “ [p]ublic confidence in the administration of justice and in the legal profession may be eroded by a lawyer ’ s irresponsible conduct ” . Code of Conduct (2012 version). It is not unusual for court rules to incorporate counsel ’ s certificate into a court procedure.

For example, Form M of the Court of Appeal of Alberta ’ s practice directions insists that counsel certify that she has “ personally checked the contents of the appeal digest and found them to be complete ” . Counsel is in the best position to provide this necessary information. Form 25B of the Rules of the Supreme Court of Canada obliges counsel to certify, in part, “ whether there is, pursuant to an order or legislation, a ban on the publication of evidence or the names or identity of a party or witness ” . Again, counsel is in the best position to bring this important information to the court ’ s attention.

In these two cases, counsel ’ s certificate allows the court system to proceed with a high degree of comfort that foreseeable problems will not occur. D. Plaintiff ’ s Counsel Was Not in a Position To Certify That All Expert Reports Had Been Served. [ 56 ] The plaintiff's counsel was not in a position to certify that all expert reports had been served when the plaintiff filed form 37.

None of the nine experts ’ reports which the plaintiff estimated she would introduce at trial had been served on the defendants when plaintiff ’ s counsel signed the form 37 request. [ 57 ] The plaintiff's counsel acknowledges in his written argument the existence of the underlying facts which made it impossible to certify that the parties had exchanged all expert reports:

The Plaintiff served her Opinion Statements under Rule 5.35 on June 11, 2012. All expert reports generated to this point in time were appended to these expert reports. When Form 37 was filed eight months prior, the Defendant knew that Rule 5.35 production had not yet occurred, and at no point insisted on strict compliance with the new rules which required this exchange to be completed before the Form could be signed and filed. ...

When it became clear that settlement ... was not in the cards, the preparation of the 5.35 statements commenced resulting in the service of the same by June 11, 2012. ... ... [B]oth counsel signed Form 37, confirming that all experts reports have been exchanged, however both counsel knew at the time that the 5.35 exchange had not occurred . (emphasis added) [ 58 ] I commend counsel for his candid concession. [ 59 ] I have not considered whether the defendants ’ counsel was in a position to sign form 37. This is not an issue before me.

The defendants are not seeking from the plaintiff reimbursement for any expert fees. But I do note that defendants ’ counsel asserts in his brief that “ [t]he plaintiff had the Defendants ’ Expert reports, respectively, on January 28, 2011 and August 24, 2011". My review of the filed material did not confirm that the defendants served rule 5.35 experts ’ reports on the plaintiff on those days. Perhaps they were not included in the record. I did discover two service letters dated January 28, 2011 and August 24, 2011 which invoked rule 5.44 of the new Alberta Rules of Court . [ 60 ] Rule 5.44(3)(

a) directs a party causing a medical examination to be conducted to “ on request, deliver promptly to each of the other parties a copy of the detailed written report of the health care professional ’ s findings and conclusions ” . By complying with rule 5.44(3)(

a) a party is not serving on the other side an expert ’ s report referred to in rules 5.34 and 5.35. Rule 5.34 prescribes the format of an expert ’ s report. An expert ’ s report must comply with Form 25 unless the parties agree to a modified format. There is no similar requirement for a rule 5.44(3)(

a) written report of a health care professional. Good practice no doubt suggests that a rule 5.44(3)(

a) report be referred and attached to a rule 5.34(

a) expert ’ s report. [ 61 ] I restate a point I made earlier. [ 62 ] A counsel who signs a form 37 request certifies that she has carefully considered what role experts will play in the proof of her client ’ s case and that her client has served on the other party all experts ’ reports on which the client will rely. Her certificate does not reflect her assessment of whether other counsel is in a position to sign a comparable certificate.

In some circumstances, professional courtesy may cause a lawyer who has reason to believe that another lawyer may be unable to sign a certificate to raise this issue with her colleague. Law Society of Alberta, Code of Conduct , Rule 6.02(1) ( “ A lawyer must be courteous and civil and act in good faith with all persons with whom the lawyer has dealings in the course of his or her practice ” ). E.

The Court Should Not Reward a Litigant Whose Counsel Falsely Certifies Something To Be True [ 63 ] An order granting the plaintiff indemnification from the defendant for the costs of experts ’ reports filed after her counsel had filed an inaccurate form 37 request would send a signal that parties can disregard court rules without the prospect of sanction. This is not a message which would promote expeditious and orderly resolution of disputes presented to this court and encourage rule compliant behaviour.

[64] Denying the plaintiff her costs for the contested experts’ reports is one way of recording this Court’s disapproval of the conduct of her lawyer. See Grenzservice Speditions Ges. m.b.H. v. Jans, 129 D.L.R. 4th 733, 760 (B.C. Sup.

Ct. 1995) (“The only way acourt can express its disapproval of such egregious behaviour is by removing counsel from the record”); Dreco Energy Services Ltd. v.Wenzel, 2006 ABQB 356 , 399 A.R. 166, 171 (Q.B. 2006) (the court criticized defence counsel who misled the Court when heasserted that a requested adjournment would not adversely affect the plaintiffs when he knew that his client would use the delay to seekan anti-suit injunction in Texas) & P.S. Refson & Co. v.

Saggers, [1984] 1 W.R.L. 1025, 1029 (Ch.) (court expressed dismay that counselfailed to promptly issue a writ, as promised, after securing an ex parte interim injunction for an intended plaintiff when the court registrywas closed). [65] Counsel must never forget that they are officers of the court and that the judicial process demands much of them. They mustalways act with integrity and honour. Hutchinson v.

Stephens, 48 E.R. 461, 464-65 (Ch. 1837) (“I am far from thinking that any counselwill knowingly violate or silently permit to be violated, any established rule of the court to promote the purpose of any client”). [66] Certifying something to be true when it is not is a breach of the high standard applicable to counsel for over 500 years. [67] The plaintiff must suffer for the sins of her counsel. His sins are hers. There is no reason to relieve her of this burden: Ordinarily this court should not distinguish between the litigant himself and his advisors.

There are good reasons why the court shouldnot: first, if anyone is to suffer for the failure of the solicitor it is better that it be the client rather than another party to the litigation;secondly, the disgruntled client may in appropriate circumstances have his remedies in damages or in respect of wasted costs ... . Hytec Information Systems Ltd. v.

Coventry City Council, [1997] 1 W.L.R. 1666, 1675 (C.A. 1996). [68] Before the defendants could be held responsible for the fees linked to the contested expert reports, the plaintiff would havehad to extract a promise from the defendants that they would pay the fees of experts the plaintiff had retained regardless of the date theplaintiff served their reports on the defendants. The plaintiff did not do this despite the fact defendants’ counsel had signalled theposition he would take on this issue in his August 2, 2012, letter to plaintiff’s counsel. F.

The Plaintiff Is Entitled to $2500 for Preparation In Trial Costs [69] Plaintiff’s counsel stated in his written and oral submissions that he had to invest sufficient time in the work of the experts toensure that their evidence would be cogent. This claim strikes me as sound. The amount the plaintiff would ultimately receive indamages if this case went to trial would depend on the trial judge’s level of confidence that the plaintiff’s experts’ evidence satisfactorilysolved the causation puzzle and identified the injuries of the plaintiff which were directly attributable to the second accident.

Plaintiff’scounsel explained it this way in his written brief: “Trial issues where the overlap between pre-existing non-compensable injury and theinjury resulting from the accident, compounded by the further impact of the 2011 accident, dispute over TMJ causation and costs offuture care and the Defendants’ [sic] position and evidence suggesting that the Plaintiff’s injuries fell within the definition of “minorinjury” under the MIR”. [70] Defendants’ counsel had two solid arguments. First, he pointed out that the parties settled roughly fifty days before the datethe trial was scheduled to start.

Second, he relied on plaintiff’s counsel’s own words in an August 20, 2012, letter: “By my calculations,our respective settlement positions are currently $22,000.00 apart. Entirely disregarding the prodigious trial costs of this matter, betweenthe two of us, we are likely to spend more than $22,000.00 over the next six week preparing our witnesses for trial”.

Both of the facts, heasserted, supported his claim that the plaintiff would have logged little trial preparation time before the parties settled. [71] But these arguments do not detract from the fact that the quality of the experts’ evidence is the most important element of theplaintiff’s case. The plaintiff’s counsel must have concluded that an early start on this phase of the trial was justified.

As well, plaintiff’scounsel gave notice in his May 7, 2012, letter to defendants’ counsel that he was going to “now” start his trial preparation. [72] I have concluded that the plaintiff’s counsel completed slightly less trial preparation than he claimed and award the plaintiff

[ 72 ] I have concluded that the plaintiff ’ s counsel completed slightly less trial preparation than he claimed and award the plaintiff $2500 for item 10(1)

Schedule C. VII. Conclusion [ 73 ] The defendants are not obliged to indemnify the plaintiff for the contested experts ’ fees. [ 74 ] The plaintiff is entitled to $2500 for preparation for trial work, item 10(1) of

Schedule C. [ 75 ] The defendants are entitled to their costs for this application. Heard on March 20 th , 2013. Dated on April 19 th , 2013 at Edmonton, Alberta. Thomas W. Wakeling J.C.Q.B.A. Appearances: Helmut Berndt for the Respondent (Plaintiff) Brian E. Thompson for the Applicants (Defendants)