Chisholm v Lindsay, 2013 ABQB 589

Court of Queen ’ s Bench of Alberta Citation: Chisholm v Lindsay, 2013 ABQB 589 Date:20131004 Docket: 0701 04015 Registry: Calgary Between: Catherine Chisholm Plaintiff - and - Noreen Lindsay Defendant _ ________________________________________ ______________ Memorandum on Costs of the Honourable Madam Justice C.L. Kenny _________________________________________ ______________ [ 1 ] The Plaintiff seeks costs of the action after the trial of this matter reported at 2012 ABQB 81 .

The Defendant seeks a contribution to trial costs as a result of offers to settle put forward by the Defendant prior to the start of the trial. 2013 ABQB 157 . [ 2 ] The parties agree on a number of issues with respect to the Bills of Costs. I will deal herein with only those issues where they disagree. Plaintiff’s Claim for Costs

1. Fees

a) Item 3(1) Supplemental Affidavit of Records [ 3 ] The Plaintiff filed an Affidavit of Records and then two subsequent Affidavits of Records. There is no issue with the first one but the Defendant objects to paying for the other two. They argue that

Schedule C costs operate on a block tariff system, and the Plaintiff is entitled to only one fee for disclosure of all records, including Affidavits of Records. That is how item 3(1) in

Schedule C reads. They further point out that to allow a fee every time an Affidavit of Records is produced would allow the Plaintiff to file a number of Affidavits of Records and seek a fee for each one which is not the intention of that item in

Schedule C. [ 4 ] The Plaintiff argues that there is a continuing obligation to provide records mandated in Rule 5.10 of the Alberta Rules of Court , Alta Reg 124/2010. The Plaintiff must file a new Affidavit of Records when new documents arise and so should be compensated for each one. I do note that although the supplemental Affidavits of Records were sworn on different dates, they were both filed on the same date and so could have been combined into one additional Affidavit of Records. [ 5 ] I have reviewed the supplemental Affidavits of Records and they appear substantive.

While I agree with the Defendants that the fee is a block fee for all disclosure, there is discretion to vary the fees to recognize additional work. I am prepared to allow an additional fee of $400 for each of the supplemental Affidavits of Records.

b) Item 4 [ 6 ] Item 4 deals with notices to admit opinions, facts, and non-adverse inferences. There are three issues under this item.

i) Plaintiff’s Rule 8.15 Notice [ 7 ] The Plaintiff served a notice of witnesses they did not intend to, or may not , (emphasis added) call for trial. The Defendant served both a response and an amended response to this notice. The Plaintiff seeks costs for the notice and for review of each of the responses. The Defendant says no costs should be awarded as the notice was defective. The Defendant cannot reply to a notice without knowing if the Plaintiff will or will not call the witnesses. “May not” is not sufficient and does nothing to assist the Defendant in knowing how to respond.

The Defendant further argues there is no entitlement to costs for reviewing the replies. [ 8 ] I agree with the Defendant that the notice is not very useful, firstly, for having listed over 52 witnesses, including any and all emergency personnel not yet identified, without it appearing that the Plaintiff considered whether the failure to call each of those witnesses would have resulted in an adverse inference, and secondly, for having used the terminology “may not” call, which does not tell the Defendant whether the Plaintiff intends to call the witnesses or not.

Having said that, the Defendant did not raise that issue in their replies but rather provided substantive replies listing those witnesses that did not need to be called and those that did need to be called in relation to the issue of adverse inference. I would allow the Plaintiff the cost for the notice. [ 9 ] There is no provision in

Schedule C for review of a notice to admit, and therefore the claim for costs to review both of the replies is denied. ii) Notice to Admit Documents [ 10 ] The Plaintiff served two Notices to Admit Documents: “A” (for the truth of their contents) and “B” (true copies of the original without admitting the truth or accuracy thereof). The Plaintiff seeks compensation for each notice. [ 11 ] The Defendant argues that there was no need for two notices and, in any event, the second notice was of no use to the trial process at all. It related almost entirely to the Plaintiff’s own treatment providers.

Such records are prima facie proof of the facts therein. The Plaintiff’s refusal to acknowledge the accuracy of the notes and records of her own treatment providers necessitated that they be called as witnesses to prove the records they made, which unduly lengthened the trial.

The notice served exactly the opposite purpose for which it was intended which is to admit documents for the purpose of expediting the trial. [ 12 ] The Plaintiff argues that the Defendant still required certain witnesses to be called and refused to admit certain documents for the truth of their contents so that did not help to expedite the trail process. [ 13 ] I will not allow costs for notice to admit “B” as it was really of no use whatsoever.

The documents were already in the affidavits of records and, without admitting them for the truth of their contents, nothing more was accomplished. iii) Notice to Admit Opinion(s) [ 14 ] The Plaintiff served the Defendant with 13 different notices to admit opinion evidence. Each was in a different notice which attached the report of the witness and a one line comment calling on the Defendant to admit the opinion for the purposes of trial under the Rules . The Plaintiff seeks the fee under

Schedule C for each Notice. [ 15 ] The Plaintiff argues that the opinions of some of the Plaintiff’s experts were accepted by the court at trial and therefore the Defendant should have admitted that evidence before the trial to expedite matters. The Plaintiff seeks enhanced costs for having to call all of these witnesses. I will deal with that matter when dealing with trial costs. [ 16 ] I was referred to Millott Estate v.

Reinhard , 2002 ABQB 998 , 322 AR 307 (“ Millot Estate ”), which allowed recovery for each notice to admit opinion evidence, and Blair v Doerksen , 2009 ABQB 184 , 470 AR 310 (“ Blair ”), which refused to allow recovery. The judge in Blair said the Plaintiff’s counsel could have simply attached the notices to admit to the 218.1 (current Rule 5.34) reports

when they were served since it was the same report already served. In the alternative, one notice listing all of the opinions for which admissions were sought could have been prepared. [ 17 ] The Plaintiff seeks a total of $10,400 to prepare the 13 Notices to Admit. The Defendant argues this is excessive given that the 218.1 (current Rule 5.34) reports had to be served in any event and that each notice was a form which included a two line reference to the specific report. [ 18 ] I agree.

Schedule C costs are to be partial recovery to the successful party for costs incurred for each step of the litigation. The sum of $10,400 for what was prepared was far in excess of the time required to prepare the notices. I will award $2,500 for this step.

c) Item 6(1) – Uncontested Application [ 19 ] The Plaintiff brought an application to have the Defendant produce the interview notes of one of its experts. The Defendant said they produced them as soon as they were served with the motion but that there was no need to serve a motion—a simple request would have sufficed. The Plaintiff says they did request the notes earlier in writing but did not receive an answer. I do not know which explanation is correct. If the Plaintiff did request the notes in writing before bringing the motion, and was not provided with them, then they are entitled to a fee for this step.

If the Defendant did not receive a request in writing in advance of the motion, there will be no fee for this step. This should be easy to ascertain by counsel looking at their files.

d) Item 8 – Alternative Dispute Resolution [ 20 ] The Plaintiff seeks compensation for attending the Judicial Dispute Resolution in this matter even though it is not provided for in

Schedule C. They argue it is an important and time-consuming step in the litigation and can be compensated for by using Rule 1.7(2) which allows the rules to be used by analogy for any matter not dealt with in the rules. [ 21 ] The Defendant argues that Rule 10.31(2) specifically says that reasonable and proper costs do not include costs related to a dispute mediation process, and therefore costs cannot properly be awarded for this step. I agree. Costs are not provided for the ADR/JDR process. There will be no costs for this step.

e) Item 10(1) – Preparation for Trial [ 22 ]

Schedule C provides for a fee of $6,000 as preparation for trial. The Plaintiff seeks a minimum of $25,000 given the length and complexity of the trial. There were 29 experts in total to prepare for, as well as 11 lay witnesses. The Plaintiff refers to the decision of Millott Estate , supra , wherein additional fees were awarded for trial preparation in a long trial with many experts. The trial judge in that case referenced the complicated fact scenario, the difficult legal issues, the over 40 witnesses, and the 35 days of trial time as reasons for granting increased costs.

He fashioned a formula of two hours preparation for each day of trial at $250 per hour to arrive at a figure of $16,000 (double the

Schedule C fee) for trial preparation. The Plaintiff here seeks at least the same which would be about 42 hours at $350 per hour for a total of $14,700. [ 23 ] The Defendant accepts the $6,000 fee but argues that the Plaintiff has provided no reason why that fee should be increased. In particular, the Defendant argues that the conduct of the trial rests with the Plaintiff, and in this case the Plaintiff served 22 expert notices on the Defendant.

That was unnecessary for a relatively straight forward case where there was no issue with respect to liability, and no difficult legal issues. [ 24 ] Experts are often more difficult to prepare for than lay witnesses. This was an expert intense trial, although all experts may not have been necessary for the trial proper. I am prepared to augment the costs somewhat given the length of the trial and the number of experts called and would set that figure at double the

Schedule C fee: $12,000.

f) Item 12 – Written Arguments [ 25 ] The Plaintiff seeks $18,000 ($3,000 times six) for final oral argument, preparation of a number of written arguments, and responses on post-trial issues. Although the argument was oral, the Defendant acknowledges a fee for argument of $3,000 given the preparation required by both parties for oral argument. [ 26 ] The other applications deal with matters of cost of future care deductions, loss of earning capacity, stay of execution and an application to strike an affidavit. Two of the applications, involving three briefs filed by the Plaintiff, were resolved in favour of the Defendant. I will award costs under Item 8(1) of

Schedule C with respect to an application requiring written briefs for two applications for a total of $3,000 plus the $3,000 for the oral argument above for a total of $6,000.

g) Inflation Factor [ 27 ] The Plaintiff seeks an inflationary factor of 1.427 on the fees awarded to reflect the fact that

Schedule C has not been amended in over a decade. The Plaintiff points to three cases before and one case after the Rules of Court were amended in 2010, where an inflationary factor was granted. [ 28 ] The Defendant points out that the Rules, including

Schedule C, were amended effective November 1 st , 2010. Some small changes were made to

Schedule C but the amounts were not changed. The current

Schedule C came into force on November 1 st , 2010. The Defendant argues that had the government intended to revise

Schedule C, they would have done so then. They did not do so and therefore the fees are current as at 2010. No inflationary factor ought to be awarded. [ 29 ] There are two decisions since the coming into force of the new Rules which state exactly that. They are Bowman v Ralph’s Arctic Cat Sales & Services Ltd , 2012 ABQB 205 , and Evans v Sports Corp , 2011 ABQB 616 , 523 AR 88. Both decisions refer to the

fact that the new

Schedule C was just enacted and set the fees as at November 1st, 2010. There is no basis on which to consider aninflation factor in these circumstances. It is up to the legislators to determine an appropriate

Schedule C and to revise it as required fromtime to time. It is not up to the courts to undertake that analysis on a case by case basis. The claim for an inflation factor is denied. 2. Disbursements in Dispute [30] The successful party is entitled to all reasonable and proper disbursements.

The reasonableness of the disbursements is to beassessed at the time they were incurred, not viewed in hindsight as to whether they were ultimately necessary or not: PetrograsProcessing Ltd v Westcoast Transmission Co (1990), (AB KB), 105 AR 384 (ABQB); Monashee Petroleum Ltd vPanCana Resources Ltd, 1988 ABCA 62, 85 AR 183; Anderson (Next friend of) v Ball (1997), (AB KB), 214 AR332 (ABQB); MacCabe v Westlock Roman Catholic Separate School District No 110, 1999 ABQB 666.

a) Anderson Associates [31] Mr. Sawa, an engineer, prepared an accident reconstruction report and testified at the trial. The Defendant says that sinceliability was admitted, there was no need to incur the costs for reconstruction of the accident. They say the accident was straightforward. [32] While it would usually not be necessary to incur these costs for this type of accident, it was helpful here for two reasons. Onewas that causation was disputed by the Defendant, and the other was the dynamics of this accident.

The angle at which the Defendant’svehicle hit the Plaintiff’s vehicle and the dynamics of the Plaintiff’s vehicle then hitting three other vehicles was relevant to causation. [33] It was reasonable to incur this cost in this case and the disbursement is allowed both for the report and the trial testimony.

b) Artery Studios Medical Illustrations [34] The Plaintiff seeks approximately $17,000 for medical illustrations and trial testimony of the illustrator. At trial, the reportand two of five drawings were not allowed in as evidence. [35] The Plaintiff argues that such illustrations are helpful to the court or jury and the witnesses to understand the injuries suffered.It is further argued that the illustrator had to attend trial because the Defendant would not agree to allow the illustrations to be admittedinto evidence.

The Plaintiff says the full cost should be allowed because the illustrations were helpful. [36] The Defendant argues that the illustrations were completely unnecessary—the same could have been accomplished by blow-ups from a medical textbook—some of the illustrations purported to show the injury or dynamics of the injury but were not directed by amedical expert for the purpose of their testimony.

The cost exceeded the cost of nine of ten of the Plaintiff’s pre-trial experts, and thoseillustrations that were admitted were nothing more than illustrations of radiographic images and drawings of joints which could havecome from a textbook. [37] The illustrations are of the highest quality and would be helpful in certain circumstances, for example, where a medical expertdirected the illustrator on what they wanted to illustrate in giving their testimony. That was not the case here. Counsel for the Plaintiffprovided the directions, not any particular expert.

The court found the report and two of the illustrations would not be helpful at all, orwere inadmissible as going to the very point in issue. The cost is also out of proportion to the issues in the trial. Thought should be given,in advance, as to what ultimately the purpose of the illustration is which cannot be readily obtained from other reliable sources. I willreduce the amount that may be recovered with reference to the material actually used at the trial. I set the recoverable disbursementunder this heading at $6,000.

c) Bergman Wohl – Bio-Mechanical Engineer [38] The Plaintiff claims the disbursements for the report, briefing and trial testimony of Dr. Wohl. The Defendant objects for thesame reason as the accident reconstruction—that liability was admitted. [39] Dr. Wohl dealt with the causal connection between the nature of the collision and the resulting injuries. This information washelpful to the court and appropriate given that causation was an issue in the trial. The disbursement is allowed.

d) Dr. Hashman – Psychiatrist [40] The Plaintiff seeks to recover Dr. Hashman’s fees for his direct report, rebuttal report, and trial testimony in the approximatesum of $38,700. The Defendant raised the issue of the Plaintiff’s pre-collision and post-collision emotional issues and alleged thePlaintiff was a “crumbling skull” rather than a “thin skull” plaintiff. The Plaintiff was required to address this issue. [41] The Defendant’s issue with respect to Dr. Hashman’s fees is the quantum. It is pointed out that the Defendant expert whoresponded to Dr. Hashman’s report charged less than half of Dr. Hashman’s fee.

The Defendant also points out the decision of Byron vLarson, 2003 ABQB 347, where Justice Kent reduced Dr. Hashman’s fee to less than half of the original, pointing out that counsel mustmake reasonable choices in the experts they hire and cannot expect the other side to pay whatever the bill is simply because that is whatthe expert charged. [42] The Plaintiff argues that Dr.

Hashman is a forensic psychiatrist and the Defendant’s expert is a clinical psychiatrist, andtherefore there was a difference between them, although it was not articulated exactly what difference that made to this case in particular. [43] I acknowledge that it is much more time consuming to do an initial report, and that Dr. Hashman spent more time inpreparation of such, while also reviewing the Defendant’s expert report and composing a reply to it. He is entitled to a greater fee, but in

the context of the overall case, Dr. Hashman’s fee alone represents almost 10% of the ultimate award. I am mindful of the comments of Justice Kent in Byron with respect to the choice of expert, and instructions to that expert. Given the case involved, and will allow Dr. Hashman’s total fee at $27,000.

e) Rehab Works – Marni Tory – Occupational Therapist [ 44 ] The Plaintiff claims a total of $14,288.36 for Marni Tory’s report, rebuttal report, trial briefing and attendance at trial. The Defendant acknowledges $7,000 for a pretrial amount but seeks a reduction for the trial amount as being unreasonable. [ 45 ] The Plaintiff was a special needs teacher, a job which involved a lot of physical work, and therefore her ability to perform her job and her domestic chores was an issue in the trial. I will allow the full claim.

f) Kenway Mack Slusarchuk Stewart LLP (John Tobin) [ 46 ] Mr. Tobin is an accountant who provided opinion evidence with respect to the amount of tax gross up on future awards. The Defendant says he was unnecessary as he did little more than confirm the economist’s calculations. While it does seem unnecessary, the Plaintiff points out that the fees of both the Plaintiff’s accountant and economist together were less than the fees of the economist hired by the Defendant. As such it is difficult to argue the fee is unreasonable. It is allowed in full.

g) Medical Nominees of Plaintiff Attending Defence Examinations [ 47 ] Under Rule 5.43(1), the cost of a nominee is to be paid by the party appointing that nominee unless the Court otherwise orders. This is contrary to the usual costs rules which entitle a successful party to costs. The Plaintiff is entitled to have a nominee present but not entitled as of right to any compensation for that decision. [ 48 ] In this case, the Plaintiff decided as a matter of course to have a nominee attend every independent examination. She now seeks reimbursement from the Defendant for all of those costs.

The argument is that because the Rules provide for the right to a nominee, that right is a hollow right without compensation from the Defendant. The Plaintiff argues she is entitled to the “protection” of Rule 5.42 which allows for nominees. [ 49 ] The Defendant takes no issue with the right of the Plaintiff to have a nominee present. There is no right to compensation however. The Defendant also takes issue with the Plaintiff’s argument that the Plaintiff needs “protection” in attending an independent medical exam arranged by the Defendant.

The Defendant is not entitled to the same “protection” by being able to appoint a nominee when the Plaintiff attends their own independent medical exam. [ 50 ] In my view, the Plaintiff must provide evidence that the need for a nominee is reasonable. Here it appears simply as a matter of course. There is no suggestion that any of the Defendant’s independent experts were unqualified nor was any issue taken with respect to their expertise in their particular area. There may be cases where a nominee is a reasonable course of action for which the Plaintiff should be compensated but that is not the case here.

The claim for the nominees is denied.

h) Treating Health Care Providers [ 51 ] This issue relates back to the notices to admit documents. The Plaintiff filed two notices; one where they wanted to admit certain documents for the truth of their contents, and another group where they only wanted to admit that the documents were copies and would not admit them for the truth of their contents.

In this latter category fell all of the Plaintiff’s treatment providers. [ 52 ] The Defendant says that the only reason these individuals needed to be called was because the Plaintiff would not admit the documents for the truth of their contents, i.e. that her own health care providers kept accurate records. [ 53 ] I would normally agree with the Defendant that the Plaintiff’s position was unreasonable and the documents should have been admitted for the truth of their contents in order to streamline the trial.

The difficulty here however, is that in her response to the notice of witnesses not to be called, the Defendant required all of these witnesses to be called. That response was filed before the notice to admit documents, and in the response to the notice to admit documents, the Defendant maintained their original position that the witnesses still needed to be called.

I cannot speculate on whether the Defendant would have changed her mind in requiring these witnesses to be called if the Plaintiff agreed to put in the documents for the truth of their contents, but as at the date of trial, the Defendant still required these witnesses to be called pursuant to her response to the notice of witnesses not to be called. [ 54 ] I will allow the briefing and trial testimony costs for these witnesses.

i) Conduct Money-Witnesses Allowances [ 55 ] The Defendant agrees to most of the claims of the Plaintiff. However the Defendant says that conduct money ought not to be paid to the Plaintiff as this is her lawsuit and she is already compensated in the fees assessed. Other witnesses, argues the Defendant, did not need to be called. Finally, the airfare and ground transportation for the one witness from Toronto was unreasonable. [ 56 ] I find the disputed witnesses were all required to be called as indicated above.

I agree that the Plaintiff should not be entitled to conduct money to attend her own trial, and I agree that the travel expense claim of Mr. Mader from Toronto is excessive. Mr. Mader’s travel costs shall be set at $2,000.

j) Office Supplies (Tabs, Binders, Cerlox) [ 57 ] I agree with the Defendant that these are overhead costs of running an office and are not recoverable disbursements.

k) Parking [ 58 ] There is no evidence with respect to the parking costs however Plaintiff’s counsel advises that such was incurred by counsel during the conduct of the trial. The fee is reasonable and will be paid.

l) Facsimile - $3,240.34 ($1,000 agreed by Defendant) [ 59 ] Facsimiles are considered office overhead according to the majority of the cases and not recoverable as disbursements. Certainly any long distance charges would be recoverable. The Plaintiff was billed $1.00 for each cover page and $0.25 for each subsequent page. I will allow the $1,000 agreed to by the Defendant.

m) Photocopying – In House ($21,896.10), Third Party ($2,543.16) Defendant acknowledges $3,500. [ 60 ] The third party charges are recoverable. With respect to the in-house photocopying, the Defendant raises two issues. The first is that such costs have been found to be ordinary overhead costs and are not recoverable as disbursements under the Rules . The second issue is the quantity and cost per page. The Plaintiff has charged the photocopying out at $0.28 per page.

This would account for 78,199 copies made. [ 61 ] Several cases have set $0.15 per page as a reasonable amount for photocopying (see, Bowman , supra ; Huet v Lynch , 2001 ABCA 211 , 293 AR 395; Dechant v Law Society of Alberta , 2001 ABCA 81 , 277 AR 333), and one case at $0.10 per page (see, Millott Estate , supra ). The Defendant also states that the Alberta Taxation Officers use $0.15 per page for in-house photocopying. [ 62 ] The amount of photocopying done and the cost per page is excessive for in-house photocopying.

The Plaintiff provided an affidavit supporting approximately 28,000 photocopies and even some of those were unnecessary such as providing each expert with 1144 pages of the affidavit of records. I will allow $4,000 for in-house photocopying. Defendant’s application for trial costs [ 63 ] The Defendant made offers to settle this matter before trial in an amount that exceeded the award at trial. The offers were not pursuant to the Rules and were not Calderbank offers. I held that the court can consider those offers in any event with respect to the issue of costs. That decision is reported at 2013 ABQB 157 .

Very briefly, the order of offers was as follows:

a) September 1 st , 2011 - Plaintiff offer to settle for $350,000 plus costs at mediation. Offer expired at the end of the day;

b) September 2 nd , 2011 – Plaintiff offer to settle at $450,000 plus costs. Formal offer;

c) November 10 th , 2011 – Plaintiff offer to settle at $761,000 plus costs. Formal offer;

d) November 15 th , 2011 – Defendant offer to settle at $350,000 plus costs. Offer open to the start of the trial;

e) November 18 th , 2011 – Defendant offer to settle at $360,000 plus costs. Offer open for 3 hours;

f) November 21 st , 2011 – Trial commences;

g) Trial award approximately $347,000 plus costs. [ 64 ] The Defendant asks the court to deny any trial costs to the Plaintiff and award trial costs to the Defendant. [ 65 ] It is a little unusual in the course of litigation such as this and not conclusive to settlement, for the Plaintiff to continually increase the amount for which they will settle the matter before trial, particularly where, as here, virtually all evidence was in the hands of each party by the time of the mediation. The Plaintiff had served 23 expert reports on the Defendant in July of 2011.

Rebuttal reports were served by each party after the mediation. [ 66 ] In any event, an offer was made by the Defendant a week before the start of the trial in the amount of the Plaintiff’s offer to the Defendant at the mediation. The Defendant argues that this was a genuine effort to settle before trial as evidenced by the fact that the Plaintiff had been willing to accept this amount two-and-a-half months earlier, and by the fact that the offer closely mirrors the ultimate award after trial. A second offer was made on the Friday before the Monday start to the trial and only open for three hours.

I do not consider this second offer a reasonable or genuine offer to settle at this late date. [ 67 ] Should the offer a week before the trial be considered? The Plaintiff points out that it was neither a formal offer nor a Calderbank offer and therefore, the Plaintiff gave it no consideration as she assumed, absent a proper offer, there could be no cost consequences. As set forth in my earlier decision on this issue, this is not the state of the law on genuine offers to settle.

There are certainly not specified cost consequences as is the case with a formal offer but it is a consideration in the overall award of costs. [ 68 ] The Plaintiff, as the successful litigant, is entitled to all costs, both trial and pre-trial. I award the Plaintiff those costs with the adjustments set out above. The issue then is whether there should be any set-off with respect to the trial costs of the Defendant as a result

of the offer to settle put forward on November 15 th , 2011. [ 69 ] The Plaintiff properly points out that the Defendant had all of the same information the Plaintiff had at the mediation when the Plaintiff put forward the original offer. Since the offer was not accepted by the Defendant at that stage, the Plaintiff incurred an additional $40,000 in disbursements as well as significant time in preparation for trial and briefing of witnesses.

Although the Plaintiff is compensated for that in pre-trial costs, those costs do not come close to compensating the Plaintiff for the actual time and effort incurred in getting ready for trial. It was therefore not reasonable nor realistic to expect the Plaintiff to take the same amount they were prepared to settle for some time earlier after having put in all of that additional work. The Defendant was well aware of the additional time and expense which would be put in by the Plaintiff after the Plaintiff’s offer.

As the Plaintiff points out, “but for” the refusal of the Defendant to take the offer of the Plaintiff at mediation, significant expenses were incurred by both parties including a 21 day trial. [ 70 ] The Plaintiff argues that it is not appropriate to penalize the successful party at the end of the trial with respect to costs where the Plaintiff had a reasonable offer on the table some months before the trial.

The Defendant is now trying to garner an advantage by submitting a late offer that does not comply with the Rules and set off all costs of a twenty one day trial. [ 71 ] I am not prepared to grant the Defendant costs in the circumstances of this particular matter. An offer to settle before trial is always a factor to consider in costs and may often result in compensation to the party making the offer depending on the circumstances. In this case, I decline to make an award for costs to the Defendant for a number of reasons:

a) There was a difference of under $4,000 between the offer made and the ultimate award. Had the award exceeded the offer, even marginally, counsel would not have even made this argument of set-off;

b) While the offer was made before trial, it was only a week before trial and all records, expert reports, rebuttal reports and briefing had been completed by then;

c) The offer was exactly the same offer the Plaintiff had put forward two and a half months earlier. While the decision of the Plaintiff to continually increase the amount of her offers to settle after the mediation did nothing for the settlement process, the original offer did reflect a range which the Plaintiff felt was reasonable at the time, the Defendant came to accept as reasonable and the court found was appropriate;

d) The Defendant could have taken advantage of the formal offer to settle process set forth in Rule 4.24(1) by simply serving their offer a few days earlier. This would have given them all of the advantages set out in the Rules . Costs [ 72 ] The Plaintiff shall have costs of this application in the sum of $2,000. Heard on the 16th day of July, 2013. Dated at the City of Calgary, Alberta this 4 th day of October, 2013. C.L. Kenny J.C.Q.B.A. Appearances: Norma C. Mayer / Morris Warren for the Plaintiff

Taryn Burnett / Derrick Pagenkopf for the Defendant