Clarke v Syncrude Canada Ltd, 2017 ABQB 244

Court of Queen’s Bench of Alberta Citation: Clarke v Syncrude Canada Ltd, 2017 ABQB 244 Date: 20170405 Docket: 0601 06205 Registry: Calgary Between: John A. Clarke Plaintiff - and - Syncrude Canada Ltd. Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice A.D.

Macleod _______________________________________________________ [ 1 ] Following a sixteen day trial, I found against the plaintiff in a wrongful dismissal action ( Clarke v Syncrude Canada Ltd , 2013 ABQB 252 ) and in 2014 I dealt with a costs application ( Clarke v Syncrude Canada Ltd , 2014 ABQB 430 ). In the fall of 2016 the defendant applied to recover expert fees relating to work prepared for Syncrude which was not used at trial. Nor was it the subject of the costs hearing. [ 2 ] Syncrude incurred expert fees in excess of $120,000.

They allege that over $90,000 of those fees are properly recoverable as a taxable disbursement. Under the formula which I laid down in my reasons of 2014, it seeks to recover two thirds of that amount or $61,271.67. It was further argued that just because this evidence was not utilized does not mean that the amount is not recoverable. Reasonableness is not assessed in hindsight, the issue is whether at the time it was incurred, the expenditure was reasonable. [ 3 ] On behalf of Mr.

Clarke, it is argued that because rule 10.31 provides that expert fees are not included unless the Court so orders, this issue ought to have been argued during the costs application. As the judgment was entered, I am functus officio , it is argued.

[ 4 ] Rule 9.14 provides: On application, the Court may, after a judgment or order has been entered, make a further order that is required, if:

a) doing so does not require the original judgment or order to be varied, and

b) the further or other order is needed to provide a remedy to which a party is entitled in connection with the judgment or order. [ 5 ] Mr. Clarke also argues that because there is no evidence adduced as to the circumstances at the time the expense was incurred, it is difficult for me to make any judgment as to reasonableness. Moreover, it should have been obvious as early as May 2012 that Mr. Clarke was not calling expert evidence on the subject matter. [ 6 ] I agree that an expert fee of this significance should have been argued at the costs hearing.

There is a real issue as to whether I would have allowed some or all of it at that time. Furthermore, it is not a taxable disbursement unless the Court says it is. Expert fees may be recoverable if the Court so orders. ( Attila Dogan Construction and Installation Co. Inc. v. AMEC Americas Limited , 2012 ABCA 379 ) [ 7 ] I am not prepared to re-open the issue of costs. The application is dismissed. Heard on the 24 th day of October, 2016. Argument filed November 30, 2016. Dated at the City of Calgary, Alberta this 5 th day of April, 2017. A.D. Macleod J.C.Q.B.A. Appearances: Laurie M.

Robson for the Plaintiff Barbara B. Johnston, QC for the Defendant