Jones v Gerosa, 2017 ABQB 36

Court of Queen’s Bench of Alberta Citation: Jones v Gerosa, 2017 ABQB 36 Date: 20170118 Docket: 0103 24943 Registry: Edmonton Between: Robert Martin Jones Plaintiff - and - Mary Gerosa and Jack Phan Defendants _______________________________________________________ Supplemental Memorandum of Decision on Costs of the Honourable Mr. Justice Robert A. Graesser _______________________________________________________ Introduction [ 1 ] This supplemental decision is to deal with an issue I neglected to deal with in my decision Jones v Gerosa , 2016 ABQB 614 .

Background Facts [ 2 ] Following my decision at trial, Jones v Gerosa, 2016 ABQB 207 , I invited submissions on costs if the parties were not able to agree. Following submissions, I issued a decision dated November 2, 2016. [ 3 ] I realized now that I neglected to deal with Dr. Phan’s reply submission of June 29, 2016 relating to the expert fees of $12,206.26. The draft Bill of Costs prepared on behalf of Dr. Phan includes an item “expert cost to determine paucity of records” in the amount of $12,206.26 (inclusive of GST). [ 4 ] Mr.

Feehan commented “the claim for expert fees in the amount of $12,206.26 is excessive, particularly having regard to the fact that neither Andrew Dey nor Ron Mackenzie were helpful in assisting the Court with that determination as to whether the provisions of the associate agreement were reasonable.” I agreed with that position. However, I note on further review that I neglected to deal with Mr. Wakefield’s reply dated June 29, 2016 where he stated, “The expert fee submitted on behalf of the defendant were not included in

the expenses to generate the extra report laid before Your Lordship at trial. The expert fees were incurred to identify information about Dr. Phan’s receipts and the efforts at collection, which information was never provided.” Analysis [ 5 ] It is unclear from these submissions if the expert fees related to a report that was eventually used in connection with any of the pre-trial applications Dr. Phan and Dr. Gerosa were successful on. [ 6 ] If the expert report was actually used in support of a successful application, Dr. Phan should be entitled to recover those costs.

I note, however, that the issue was common between Dr. Phan and Dr. Gerosa and only half of the fees would thus be attributable to Dr. Phan’s counterclaim. [ 7 ] This information was not used at trial, and while there is a discretion with respect to expert costs incurred during the course of litigation, successful recovery is generally dependent on the use of the expert report or expert testimony in a court proceeding. Here, this information was not provided at trial. I would only allow the cost if the report was used for the purposes of an application where Dr. Phan was awarded costs.

Heard on the 7 th through the 11 th days of March, 2016. Dated at the City of Edmonton, Alberta, this 18 th day of January, 2017. Robert A. Graesser J.C.Q.B.A. Appearances: Edward R. Feehan and Erin Burton Duncan Craig LLP for the Plaintiff Kim Wakefield, Q.C. and Omolara Oladipo Dentons Canada LLP for the Defendant Phan