Fill v. Somani, 2013 ABQB 572

Court of Queen ’ s Bench of Alberta Citation: Fill v. Somani, 2013 ABQB 572 Date: 20131002 Docket: 0603 06313, 0603 06306 Registry: Edmonton Docket: 0603 06313 Between: Charlotte Fill and Charmar Construction Force Ltd. Plaintiffs - and - Altaf Somani, 641132 Alberta Ltd., the Administrator of the Motor Vehicle Accident Claims Act, John Doe and Richard Roe Defendants Docket: 0603 06306 And Between: Marian Fill and Charmar Construction Force Ltd.

Plaintiffs - and - Altaf Somani, 641132 Alberta Ltd., the Administrator of the Motor Vehicle Accident Claims Act, John Doe and Richard Roe Defendants _ ________________________________________ ______________ Written Reasons for Decision of the Honourable Madam Justice D.L. Shelley _________________________________________ ______________

Background [ 1 ] The Plaintiffs, a married couple, were injured in a motor vehicle accident on May 22, 2004. They commenced separate actions against the Defendants in 2006. [ 2 ] In August 2009, Mr. Somani, his corporation (641132), and their insurer (collectively referred to as the “Somani Defendants”) admitted that Mr. Somani was at least 1% liable for the accident. [ 3 ] On October 1, 2009, the Somani Defendants offered to settle with Ms. Fill for $111,690.75, less what she had received in

Section B benefits ($7,920.00), plus costs. At the same time they offered Mr. Fill $58,432.50 plus costs. These offers were not accepted. [ 4 ] A pre-trial conference was held on March 11, 2010, directing a common liability trial, followed by separate damage trials. [ 5 ] On June 16 and 17, 2011 the parties conducted a mediation which did not result in a settlement of the matter. [ 6 ] A seven week trial was scheduled to commence on September 12, 2011.

I was assigned to preside over that trial. [ 7 ] In July 2011 the Plaintiffs served, and the Defendants responded to, Notices to Admit Documents and Notices to Admit Opinions. [ 8 ] On July 7, 2011, the Somani Defendants made formal offers to settle. They offered Ms. Fill $550,000.00, plus taxable costs and disbursements. They offered Mr. Fill $138,000 plus taxable costs and disbursements. The Plaintiffs accepted these offers on September 6, 2011. The accepted offers were reduced to Consent Judgments. [ 9 ] Ms.

Fill’s Consent Judgment dealt with the issue of costs by stating: “The Plaintiffs are awarded party-party costs (fees and disbursements), which said party-party costs (fees and disbursements) may be either agreed upon amongst the parties (and their counsel) or, failing agreement, taxed in Column 4 of

Schedule C of the Alberta Rules of Court.” [ 10 ] Mr. Fill’s Consent Judgment dealt with the issue of costs in a similar fashion: “The Plaintiffs are awarded party-party costs (fees and disbursements), which said party-party costs (fees and disbursements) may be either agreed upon amongst the parties (and their counsel) or, failing agreement, taxed in Column 2 of

Schedule C of the Alberta Rules of Court.” [ 11 ] The principal amount of the Judgments was paid to the Plaintiffs. A dispute arose with respect to the issue of costs. Therefore, an assessment was scheduled before the Review and Assessment Officer, originally to be held on February 22, 2012 but adjourned to August 12, 2012. Between those two dates, on May 9, 2012, the Defendants paid $87,852.94 in relation to non-disputed fees and disbursements. [ 12 ] The Assessment Officer allowed $118,899.02 of the $199,176.77 claimed by Ms. Fill in respect of costs. He allowed $56,273.89 of the $115,938.36 claimed by Mr.

Fill. The Assessment Officer directed that a number of issues be referred to a Justice of this Court for determination: 1. Whether the Plaintiffs were to be awarded an inflationary factor in relation to

Schedule C Tariff of Fees. 2. Whether the Plaintiffs were entitled to

Schedule C Tariff Fees individually for each of the Notices to Admit Opinions, the Notices to Admit Documents, and the Plaintiffs’ Replies to Defendants’ Notice to Admit Documents. 3. Whether the Plaintiffs were entitled to recover the disbursement expense of the mediator. 4. Whether the Plaintiffs were entitled to recover disbursements for fees paid to physician nominees who attended during the Rule 5.41 Examinations of the Plaintiffs. 5.

Whether the Plaintiffs were entitled to recover the expert expense of Robert White and Mark Weston of PricewaterhouseCoopers (PWC), particularly in relation to their opinion regarding the business expense/loss arising to the corporate Plaintiff. 6. Whether photocopying costs could be varied to greater than 0.15 cents per copy. Issues

[ 13 ] Before me are the issues that were referred by the Assessment Officer. [ 14 ] In addition, at issue is whether the wording contained in the Consent Judgments limits my discretion in the awarding of costs. Both Judgments awarded costs by reference to either Column 2 or Column 4 of

Schedule C of the Rules of Court. [ 15 ] The parties also argued the issue of costs in relation to my hearing of this costs application. Wording of the Consent Judgments [ 16 ] The Plaintiffs assert that no one addressed their mind to the impact of the Consent Judgment wording in relation to the Plaintiffs’ entitlement to costs.

They take the position that my discretion in relation to the awarding of costs is not limited by the wording in the Consent Judgements, particularly because the matter is before me by way of a referral from the Assessment Officer. [ 17 ] The Defendants do not argue, nor do they provide any authority, that the wording of the Consent Judgments has limited the Court’s discretion in the awarding of costs.

Rather, they argue that some of the costs claimed by the Plaintiffs are not recoverable by law, in particular an inflationary factor and mediation costs. [ 18 ] Whether or not parties can theoretically remove a court’s discretion through contract, I am satisfied that they have not done so in this case. The parties contracted to submit the matter of costs to taxation if they could not agree. Taxation by its nature implies discretion on the part of the presiding Justice. If reference to the specific columns in

Schedule C were intended to fix an upper limit on the taxable costs awarded to the Plaintiffs through the Consent Judgments, much clearer and stronger limiting language would be required to effect that intention. [ 19 ] Accordingly, I will proceed to consider the remaining cost issues having regard to the circumstances of this case and the legal principles applicable to them, without concern that the discretion I would normally have has been affected by the costs provisions in the Consent Judgments. Inflationary Factor [ 20 ] The Plaintiffs argue that

Schedule C Fees should be increased by an inflationary factor of 1.412, to reflect inflation between 1998 (when the existing fees in

Schedule C were originally set) and 2011 (when the action was settled). This argument is based on the expert economic evidence provided by Mr. Derrick Aldridge on behalf of the Plaintiffs. [ 21 ] As authority for the argument that they should receive an inflationary factor, the Plaintiffs rely on the decision of ACJ Rooke in Eaton v. HMS Financial Inc ., 2010 ABQB 364 (at paragraph 4 ).

In that case, ACJ Rooke applied an inflationary factor of 1.2. [ 22 ] While the Plaintiffs recognize that inflationary adjustments have not been applied in all cases, they submit that inflation is widely accepted in society and should be taken into account by the Courts in determining appropriate costs. [ 23 ] The Defendants contend that, when the new Rules of Court were enacted in 2010 (the “New Rules”), the table amounts set out in

Schedule C were retained at the 1998 levels and that they therefore remain current. In support of this argument, the Defendants rely on Justice Graesser’s decision in Evans v. Sports Corp ., 2011, ABQB 616 . At paragraph 61 of that decision, Justice Graesser concluded that “Schedule C should be considered to be current as of [2010]” when the new Rules of Court were implemented.

He also noted that, when no information on inflation is provided by an economist, “that is a further factor to decline to make such an adjustment”. [ 24 ] I consider it relevant that on May 23, 2013, the Rules of Court Committee (the “Committee”) issued a “Request for Comments” (the “Request”), seeking input from the Alberta Bar in relation to its review of the Tariff of Recoverable Fees. In the Request, the Committee noted that, when the New Rules came into effect on November 1, 2010,

Schedule C was not changed from the amounts established in 1998. It is this fact that formed the basis of part of Justice Graesser’s reasoning in Evans , on which the Defendants rely. The Request also observed that the reason

Schedule C had not been altered when the New Rules were enacted was that “the Alberta Law Reform Institute, which was instrumental in drafting the New Rules, viewed the appropriate amounts as being beyond the scope of the project.” The Committee has decided to re-examine the

Schedule and in connection with that re-examination has sought input from the Bar. [ 25 ] In its Request, the Committee observed that inflation, since the amendments in 1998, has been about 35%. The Committee observed that the Consultation Memorandum had considered recommending a mechanism to adjust

Schedule C for inflation, by employing one of a variety of mechanisms considered, but had been unable to reach a consensus. It observed that this had resulted in Queen’s Bench Judges having used their discretion to award an inflation factor in a variety of ways. [ 26 ] It remains to be seen what the Committee will ultimately recommend and what will ultimately be adopted in relation to the re- examination of

Schedule C. However, I am satisfied that the lack of any revision to

Schedule C at the time of the enactment of the New Rules should not be viewed as conclusive that

Schedule C was considered to be current at that time. [ 27 ] One of the factors considered by Justice Graesser in Evans was that, in considering whether to make an adjustment for inflation, one factor is whether information on inflation has been provided by an economist. I have in this case been provided with expert

evidence concerning inflation. Mr. Aldridge’s opinion with respect to inflation is relatively close to the inflation referred to in theCommittee’s Request. I am satisfied that this is an appropriate case in which an inflationary factor should be applied and accept that Mr.Aldridge’s report, unchallenged by the Defendants in relation to the factor suggested, establishes the appropriate factor. Fees for Notices to Admit and Replys 1. Notices to Admit Opinions [28] The Plaintiffs submit that the Court should award at least

Schedule C Fee amounts for each Notice to Admit related to expertopinions. They argue that these Notices to Admit Opinions were necessary because the expert testimony was essential to the litigation.They point out that the Defendants did not admit the opinions given by Mr. Paul Gardam.

They suggest that additional costs may bewarranted, having regard to Rule 10.33(2), which allows the Court to consider “a party’s denial of or refusal to admit anything thatshould have been admitted” in deciding whether to impose or vary an amount in a costs award. [29] The Plaintiffs point to Justice Veit’s decision in Waterous Investments Inc. v. Liberton Holdings Inc., (AB KB), [1996] AJ No 334. At paragraph 32, Justice Veit found that a successful party is “entitled to additional costs to reflect the timeand trouble of calling the disputed evidence”. The Plaintiffs also rely on Walker v.

Ritchie, [2004] OJ No 787, a decision of the OntarioSuperior Court that dealt with a claim for enhanced costs. The Court held that enhanced costs are warranted where the Defendant’sinsurer does not admit anything, requiring every issue to be proven at trial. In Walker, the Court awarded a $200,000.00 enhancement ofcosts. [30] The Defendants concede that one set of costs should be awarded to each of Ms. Fill and Mr. Fill. However, they argue thatJustice Horner’s decision in Blair v. Doerksen, 2009 ABQB 184, should be applied.

In that case Justice Horner concluded that it was“unnecessary to file separate Notices to Admit Opinions for each of the expert opinions”. In the result Justice Horner concluded that thePlaintiff was only entitled to one fee for multiple Notices. [31] I consider Rule 10.33(2) and the reasoning in Waterous Investments and Walker to be of limited assistance in this case, sincethe matter did not proceed to trial. While I have no doubt that the Plaintiffs’ expert’s opinions facilitated the settlement, I cannotconclude that the Defendants’ non-admission of Mr. Gardam’s opinion should attract additional costs.

Similarly, Justice Veit’s reasoningin Waterous rested on a successful party having had to bear the costs of calling disputed evidence, similar to the situation in Walker,where the plaintiff had to prove every issue at trial because the defendant refused to admit anything. [32] I do not know the length of the expert opinions considered by Justice Horner in Blair. In the case before me, the expertopinions related to damages were extremely long and detailed. All opinions dealt with different subject matter.

While the Plaintiffs couldhave elected to file a single Notice to Admit in respect of their expert opinions, they were not required to do so. In light of the length andcomplexity of the opinions themselves, in this case I conclude it was appropriate to file individual Notices to Admit Opinions.Accordingly, each Plaintiff will be awarded a fee in respect of each Notice to Admit filed by them. 2. Notices to Admit Documents [33] The Plaintiffs took the position that filing the Notices to Admit Documents was a step taken to reduce the anticipated lengthof trial. They rely on Justice Conrad’s decision in Sidorsky v.

CSCN Communication Ltd., 1997 ABCA 280. They argue that seekingadmissions from the Defendants was appropriate. In Sidorsky, the Court of Appeal indicated that a party may be eligible to seeksolicitor/client costs if it sought admissions in an attempt to conduct the litigation efficiently. In this case, the Plaintiffs characterize theservice of a Notice to Admit Documents as having been “largely successful” since the Defendants admitted nine out of eleven documentsfor the truth of their contents. The Plaintiffs submit therefore that the

Schedule C Fee for this item is a minimum amount that should beawarded. [34] The Defendants concede, appropriately, that the Plaintiffs are entitled to the $1200.00 costs claim in relation to their Noticesto Admit Documents. 3. Replies to Notices to Admit Documents [35] The Plaintiffs seek costs for their Reply to the Defendants’ Notices to Admit Documents. They rely on Rule 1.7(3), whichpermits any of the Rules to be applied by analogy to situations not expressly contemplated. In this case, the analogy drawn is between aNotice to Admit and a Reply to a Notice.

The Plaintiffs argue that costs should be awarded for the Reply because the Defendants’Notices to Admit were colorable attempts to introduce opinion evidence improperly. [36] The Defendants submit that no costs should be awarded for the Plaintiffs’ Replies to their Notices to Admit Documents. Theyargue that they filed the Notices to Admit Documents to eliminate the need to call a number of witnesses and to make the trial moreefficient. They claim that the Plaintiffs’ Replies, which failed to admit the documents, would have unnecessarily lengthened the trial. [37] The Defendants rely on Milot Estate v.

Reinhard, 2002 ABQB 998. At paragraph 40 of her decision, Justice Fraser (as shethen was) noted that admissions made following a Notice to Admit Documents “were of assistance in expediting the trial by negativingthe need to prove the accuracy of certain facts or documents”. The Defendants claim that their Notice is appropriate, and that thesubsequent Reply, which failed to make any admission, was not. [38] Justice Fraser’s reasoning in Millot is of limited application in this case, since it is predicated upon a trial proceeding.

Giventhe settlement in favour of the Plaintiffs’, it is difficult to conclude that the Plaintiffs’ failure to make any admissions had a negativeimpact on the outcome. However, I am not satisfied that the Defendants’ Notices to Admit were colourable attempts to introduce opinionevidence improperly and decline to award costs on the basis of the Plaintiffs’ analogy. Mediation Expenses

[ 39 ] The Plaintiffs submit that mediation fees should be treated as a disbursement. They take the position that the new Rules of Court, that prevent the recovery of mediation costs, should not be considered because this mediation took place before the alternative dispute resolution was a mandatory step in litigation. Therefore, the old Rules should apply, and they did not prohibit recovery of mediation costs. The Plaintiffs contend that the Defendants should bear the cost of mediation because “but for” their negligence, the mediation would not have taken place.

In addition, the Plaintiffs argue that the mediation was an important step in the litigation process that resulted in the Defendants making acceptable offers for settlement. [ 40 ] The Defendants argue that mediation costs are not recoverable, because Rule 10.41(2)(

d) of the new Rules of Court provide that dispute resolution process costs are not “reasonable and proper costs”. Even if the new Rules do not apply, the Defendant identified two cases to support their argument that mediation costs are not recoverable generally and, in particular, are not recoverable here because they did not engage in any serious misconduct. The Defendants refer to Mar Automobile Holdings Ltd. v. Rawlusyk , 2001 ABQB 516 . In that case, Justice Clark held that “mediation costs are not an item that should be included in taxable costs for disbursements”.

More recently, Justice Jeffrey refused to award costs for three failed JDR’s because neither party “demonstrated any ‘serious misconduct’ on the part of the other during those processes” ( LDW v. KDM , 2011 ABQB 800 ). [ 41 ] Although it is true that the New Rules do not apply to the subject mediation, the rationale for Rule 10.41(2)(

d) is relevant and likely lead to the results in Mar Automobile and LDW . The rationale for the Rule was that dispute resolution processes benefit both parties and promote early settlement. Parties should be encouraged to undertake resolution through alternative dispute resolution processes and they should view them as being of benefit regardless of the outcome. Accordingly, I decline to award the costs of the mediation in this case. Nominee Invoices [ 42 ] The Plaintiffs argue that it is reasonable to have a nominee physician present in almost all circumstances to prevent errors from going unnoticed.

Rule 5.42 affords the person who is to be the subject of a medical examination the right to nominate a health care professional to be present during the exam. The Plaintiffs contend that the right to have a nominee present is absolute, as stated in Nistor v. Kankolongo , 2007 ABQB 684 (at paragraph 25 ). They argue that this absolute right would be rendered meaningless if compensation for the associated fees was not available. [ 43 ] The Plaintiffs cite the Alberta Court of Appeal decision in Bohynayko v.

Vries , 2001 ABCA 20 , as authority for its proposition that the cost of a nominee is a recoverable disbursement at the discretion of the court, applying the same rules as it would for any other costs. [ 44 ] The Plaintiffs acknowledge that the case law is not consistent on this issue. For example, in Blair v. Doerksen , 2009 ABQB 184 , Justice Horner decided that a Plaintiff must prove that the attendance of the nominee was necessary before the costs associated with the nominee’s attendance can be recovered.

The Plaintiffs argue that this case should be distinguished because it was based on an incorrect reading of Garrido v. Pui , 1990 ABQB 426, by Justice Mahoney in Davidson v. Patten , 2005 ABQB 521 . [ 45 ] The Plaintiffs argue that it is impossible to prove that a nominee’s presence is necessary. In Davidson , Justice Mahoney referenced Bohynayko but did not take note of the statement about necessity.

In Bohynayko , at paragraph 14 , the Court of Appeal stated that “whether the attendance or the presence of the nominee is necessary should not be a consideration – it is an absolute right of the party being examined under Rule 217(5), without a need for justification”.

The Court went on to say that “entitlement to reimbursement is not automatic, and, if costs are allowed, they would have to be justified as reasonable”. [ 46 ] On the basis of the Court of Appeal’s comments in Bohynayko , the Plaintiffs argue that the test for awarding nominee costs should be the reasonableness of the fees and not the necessity of the nominee’s attendance. The Plaintiffs submit the nominee’s fees ought to be awarded as costs in full in this case because they are modest and appropriate. In addition, they point out that the Defendants orthopedic expert, Dr.

Tadros, had been disciplined by his professional governing body for accepting kickbacks, tending to show that electing to have a nominee present was appropriate in this case. [ 47 ] The Defendants submit that the Plaintiffs are not entitled to have costs awarded for the disbursements associated with medical nominees unless evidence is adduced to show that the defence medical assessment would be conducted improperly or if the qualifications of the expert in question were suspect. The Defence concedes that the Plaintiffs have a right to have a medical nominee present during the examinations.

They rely on Justice Horner’s comments in Blair in which she concluded that the “Plaintiff had a discretionary right to have his nominees attend the examinations but has failed to convince the Court that the attendance of either nominee was necessary”. Justice Horner found “no evidence in this case that the medical nominees were necessary”, resulting in her conclusion that the Plaintiff was “not entitled to recover disbursements of its medical nominees”.

In this case the Defendants submit that there is no evidence that either of the doctors performing the defence IME assessments were unable to properly conduct their tests. [ 48 ] I have concluded that the Court of Appeal decision in Bohynayko does not support the test suggested by the Defendants. The Plaintiffs do not have to establish necessity of the nominee’s attendance. Rather, the issue is whether the nominee’s fees are reasonable and appropriate. I conclude that the fees charged by Drs.

Hoyer and Selland in this case were reasonable and appropriate. [ 49 ] Although I have concluded that the Plaintiffs do not have to prove necessity in order to be awarded costs of their nominee’s attendance, in this case the Plaintiffs have provided a specific reason why the examination by Dr. Tadros warranted having a nominee present. In addition, the Plaintiffs have provided satisfactory reasons why the type of examination conducted by neuropsychologists generally justifies the attendance of a nominee.

PWC’s Invoice [ 50 ] The Plaintiffs argue that because the Defendants never filed a Notice of Objection under Rule 5.36 in relation to PWC’s expert opinion evidence, it cannot dispute the amount of the invoice. Rule 5.36 provides that any objection to the admissibility of an

expert’s report must be made before trial, unless the Court otherwise permits. [ 51 ] In addition, the Plaintiffs’ submit that PWC’s invoice was reasonable. To demonstrate its reasonableness, they point to an examination of the report itself and to the evidence of Mr. Weston, one of the report’s co-authors. Mr. Weston confirms that the account had been significantly reduced. He also explained that, because the Plaintiffs’ company was just commencing operations, his analysis required more time to conduct research, because it could not simply rely on historical data that could be summarized and then projected. Mr.

Weston explained that he followed the professional protocols for chartered accountants and business valuators. The Plaintiffs seek costs for the full amount of PWC’s invoice on the basis that the report was necessary, that it was conducted appropriately, and that the fees charged were reasonable. [ 52 ] The Defendants admit that the costs for PWC’s services should be reduced because the two reports were “overkill” and the price was excessive. The Defendants admit that acquiring an economic assessment in a personal injury matter is a reasonable expense, but that this particular report was too costly.

The Defendants do not offer any evidence as to why PWC’s costs were too high or what PWC’s assessment should have cost. They argue generally that the disbursement was not reasonable, based on the standards enunciated in several cases. [ 53 ] In MacCabe v. Westlock Roman Catholic Separate School District No. 110 , 1999 ABQB 666 , Justice Johnson set out eleven factors which should be considered when determining “whether or not a disbursement is reasonable”.

These factors include the length of trial, its complexity, the nature and amount of damages at issues, and the relationship of the expenses claimed as costs to the amounts at issue in damages. [ 54 ] On the issue of complexity, the Defendants note that in Copithorne v. TransAlta Utilities Corporation , 2007 ABQB 82 , at paragraph 7 Justice Bensler found that it was “appropriate to consider if the expert’s report constitutes ‘overkill’ and thereby complicates the task of the Court”.

Justice Bensler also commented that “the claim for costs ... may be reduced where the costs claimed are disproportionate to the damages awarded at trial”. [ 55 ] In Byron v. Cabra , 2003 ABQB 347 , Justice Kent held (at paragraph 8) that lawyers “should instruct their experts to show restraint in the amount of time spent” and that Counsel cannot expect reimbursement for the expert’s bill “simply because that is what the expert billed”. Justice Kent further noted that the expert must be a reasonable choice and the “account must be reasonable given the nature of the services”.

Justice Sullivan made a similar finding in Meehan v. Holt , 2011 ABQB 110 , that “experts have it in their power to drive up the costs of the litigation. The duty of the expert to the Court must include a duty to limit analysis and report content to what is reasonable in the circumstances”. [ 56 ] The Defendants argue that the $49,722.75 disbursement of PWC should be reduced because the home based renovation company employment situation of the Plaintiffs was not complicated. They submit that the PWC report was of no evidential value in arriving at the settlement agreement.

Finally, they argue that the $680,000.00 global settlement amount demonstrates that the economic circumstances were not complex. [ 57 ] The Defendants offer no evidence, expert or otherwise, as to why the PWC disbursement was too high, why the assessment of income loss was “not complicated” or “not complex”, or why it was of no evidential value in arriving at the settlements. To the contrary, Counsel for the Defendants acknowledged that a significant proportion of the settlements related to the Plaintiffs’ income loss claims.

I note that the final settlements were significantly higher than the Defendants original offers (approximately five times higher for Ms. Fill and more than double for Mr. Fill).

It is reasonable to conclude that the PWC income loss analysis was a significant factor in the increased settlement offers. [ 58 ] In addition, the authors of the PWC report have explained why it was necessary to approach the income loss assessment as they did, have confirmed that they conducted the assessment in accordance with their professional obligations and standards, and that the fee was significantly reduced before it was rendered.

The Defendants offered no contrary evidence, just a very general argument, in response. [ 59 ] The Defendants do not dispute the appropriateness of obtaining a report of this nature and I do not accept their very general arguments that the costs associated with the reports ought to be reduced. Photocopying Expenses [ 60 ] The parties are in agreement that third party photocopying costs should be reimbursed in full.

They disagree on the amount that should be awarded in respect of the in-house photocopying costs charged by Plaintiffs’ Counsel. [ 61 ] The Plaintiffs submit that the in-house photocopying costs should be awarded at the rate of $0.28 per page. This position is supported by Affidavit evidence of Jennifer Paolucci, a Legal Assistant employed by Plaintiffs’ counsel. Ms.

Paolucci’s Affidavit details the various costs associated with the photocopying of documents and concludes that the actual costs of photocopying are approximately $0.38 per page. [ 62 ] The Defendants submit that in-house photocopying costs should be fixed at $0.15 per page. They rely on Dechant v. Law Society , 2001 ABCA 81 . At paragraph 30 of that decision, Justice Conrad decided that, where photocopying one page actually costs $0.25, it should be allowed, but otherwise $0.15 per page is an appropriate amount. In Marathon Canada Ltd. v.

Enron Canada Corp ., 2008 ABQB 770 , Justice Mahon set the price of photocopying at $0.15 per page, plus GST. [ 63 ] The Defendants do not provide any evidence which suggests that the analysis undertaken by Ms. Paolucci was erroneous in any way. Where a party does not provide evidence to support a higher amount, Courts have arbitrarily set an amount. However, where

there is evidence to support a higher number, Courts have awarded it. Here, Ms. Paolucci’s evidence confirms actual photocopying costs of $0.38 per page. I conclude that the requested amount of $0.28 per page has been proven, since there is no evidence or analysis to contradict it. Accordingly, the amount claimed will be awarded.

Costs of this Application [ 64 ] At this cost application, the Plaintiffs sought solicitor/client costs on the basis of the Defendants’ failure to pay the costs that were awarded by the Review Officer on August 7, 2012. [ 65 ] Although the Defendants did not offer any reasonable explanation as to why the costs awarded by the Review Officer had not been paid in the intervening 11 months, this application does not relate to the non-payment of those costs. Rather, this application was necessary because the parties could not agree on costs that were beyond the scope of the Review Officer’s jurisdiction.

The Plaintiffs took no steps to collect the award of the Review Officer, which would have been an appropriate response to the Defendants’ failure to pay. I do not conclude that such non-payment constitutes the type of egregious conduct that would attract solicitor and client costs. [ 66 ] The Plaintiffs were largely successful on this application and are therefore entitled to party-party costs of the application. Conclusions [ 67 ] In the result, the Plaintiffs are awarded: 1. An inflationary factor of 1.412 on the principal amount of the Judgments. 2.

The fee amounts requested by them in respect of each Notice to Admit filed by them. 3. No fees in respect of their replies to the Defendants’ Notices to Admit Documents. 4. No costs in respect of the mediation. 5. The disbursements charged by their nominees (Drs. Hoyer and Selland). 6. The full amount of the PWC invoices rendered in relation to their expert opinions. 7. In-house photocopying at $0.28 per page. 8. Costs of this application in accordance with

Schedule C. [ 68 ] If the parties have any questions or disagreements regarding the results of the application as set out in these Reasons, they are to contact my assistant within 30 days to arrange for a time at which the same may be addressed. Heard on the 15th day of July, 2013. Dated at the City of Edmonton, Alberta this 2 nd day of October, 2013. D.L. Shelley J.C.Q.B.A. Appearances: Morris Warren for the Plaintiffs Bruce MacLeod for the Defendants