Carroll v Atco Electric Ltd, 2017 ABQB 641

Court of Queen’s Bench of Alberta Citation: Carroll v Atco Electric Ltd, 2017 ABQB 641 Date: 20171024 Docket: 1103 01724 Registry: Edmonton Between: John Carroll Plaintiff - and - Atco Electric Ltd. and Canadian Utilities Limited Defendants _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Douglas R.

Mah _______________________________________________________ Background [ 1 ] In Carroll v ATCO Electric Ltd , 2017 ABQB 267 , I gave judgment in favour of the Plaintiff Carroll in the sum of$72,000 in respect of a claim for foregone bonuses arising from a without cause dismissal, while dismissing the remainder of the claims. This sum arose from the theoretical bonuses that Carroll might have received during 2010 and 2011 had he been allowed to work for the full duration of the notice period, which I fixed at 24 months.

I further found that actual salary paid during the notice period, combined with a “with prejudice” payment subsequently made by ATCO Electric plus Carroll’s mitigation income, exceeded the amount payable for 24 months’notice by some $165,208 (the excess). [ 2 ] Then in Carroll v ATCO Electric Ltd , 2017 ABQB 426 , I ruled that ATCO Electric was entitled to equitably set-off the

excess against the judgment and was relieved of any further liability. [ 3 ] As it turned out, Carroll had failed at trial to best any of four offers made by ATCO Electric along the way. In claiming its costs against Carroll, ATCO Electric also now wishes to pass along a bill from its actuarial expert, Mercer Canada Limited (Mercer), in the sum of $235,924.64. [ 4 ] Thus I received further submissions from both counsel with regard to costs of the action. This is my costs decision. Issues [ 5 ] I am asked to decide the following : (

a) Is ATCO Electric entitled to double costs from the date of the second offer? (

b) Is ATCO Electric entitled to set-off the remainder of the excess against Carroll’s costs? (

c) For what part of the Mercer bill should Carroll be responsible? Discussion [ 6 ] I should mention that there are actually two defendants, the other being Canadian Utilities Limited (CUL). At para 124 of 2017 ABQB 267 I dismissed the claim against CUL. It was not really pursued during the trial. I made that specific ruling for the sake of tidying up loose ends.

As the trial made clear, the real defendant was ATCO Electric. [ 7 ] It is not contested that ATCO Electric is entitled to its costs from the date of the first offer being June 19, 2012 or that Carroll is entitled to his costs from the date of inception of the action to the date of the first offer. Double costs from second offer [ 8 ] The assertion of entitlement to double costs from the second offer arises from the fact that second offer, made on October 5, 2012, was coupled with a cash “with prejudice” payment of $150,000 which created the bulk of the excess.

It is argued that the effect of ATCO Electric becoming entitled to set-off the excess against the judgment per 2017 ABQB 426 nullified the Carroll’s judgment, with the net result that Carroll’s action was “dismissed” in its entirety for the purposes of Rule 4.29(3)(b) . [ 9 ] Carroll’s counsel counters that his claim against ATCO Electric was not and has never been dismissed. He achieved a judgment of $72,000. He has only been prevented from collecting it because of the set-off ruling. [ 10 ] I agree with Carroll’s counsel here.

It is clear from para 125 of 2017 ABQB 267 that I rendered judgment in Carroll’s favour. I did not dismiss the claim for the 2010 and 2011 bonuses but rather upheld it. In the subsequent decision I ruled that, in equity, ATCO Electric should not be required to pay further. That does not detract from the fact that Carroll obtained the judgment in the first place. [ 11 ] Accordingly, I find that ATCO Electric is not entitled to double costs from the date of the second offer under Rule 4.28(30(b) .

Set-off against the remainder of the excess [ 12 ] If ATCO Electric is entitled to set-off the remainder of the excess against Carroll’s costs, then Carroll would not be able to rely on Rule 10.31(4), which deals with set-off of mutual costs awards, to reduce the amount of costs payable by him to ATCO Electric. [ 13 ] Carroll’s counsel says that para 16 of 2017 ABQB 426 only refers to the judgment being set-off.

That is so but costs were not part of that decision. [ 14 ] At para 15 of that decision, I say: [15] In the present case, it would be unfair to not permit ATCO Electric the benefit of funds already paid to Carroll, where the reasons for the earlier payment encompass the reason for which he received judgment. It would be double recovery. [ 15 ] The earlier payment referred to is the $150,000 “with prejudice” payment.

At para 6, I note: [6] In the letter of October 3, 2012 advising of the with prejudice payment, counsel for ATCO Electric advised Carroll’s then counsel as follows: Please be advised that the sum of $105,000.00 will be deposited directly into Mr. Carroll’s bank account on October 19, 2012. This amount represents a payment of $150,000.00 less a 30% withholding for tax requirements and is intended to compensate Mr.

Carroll for any remaining clams he may have against the ATCO Defendants including his claims for salary, benefits, pension, bonus and all other items listed in the Amended Statement of Claim . [ 16 ] Of course at para 26 of the Amended Statement of Claim filed November 29, 2011, Carroll did ask for costs of the action. I have to apply the same principle with respect to costs. Accordingly, ATCO Electric is entitled to set off the remainder of the excess against Carroll’s costs.

The Mercer bill [ 17 ] Carroll protests the Mercer bill saying it is beyond all reasonable magnitude. There is no doubt that Mercer’s actuarial expertise was required by ATCO Electric to answer Carroll’s claim for pension loss on a continuing basis throughout the litigation. It is also noted that Mr. Greenwood of Mercer did give some useful evidence at trial that assisted me in understanding whether there was a pension loss. Carroll’s expert, Mr. Tettmar, did the same.

Ultimately the pension loss question was resolved on the basis of a consensus between the two experts that no pension loss occurred if notice was effectively given on May 4, 2010 (see para 120 of 2017 ABQB 267 ), which was the finding I made at para 88. [ 18 ] Carroll’s counsel points out, and I agree, that it is difficult to justify the validity of Mercer’s charges for the purposes of this costs application because of the lack of detail regarding hourly rates, who performed the services and exactly what services were performed or whether any of the charges are excluded by Rule 10.41(e) .

The Mercer invoices only describe the services provided in a general way. [ 19 ] Carroll’s actuarial expert, Mr. Tettmar, has similar expertise to Mr. Greenwood and by all accounts satisfactorily fulfilled the role of actuarial expert for Carroll’s purposes. Mr. Tettmar provided reports that were of similar length and content to the Mercer reports. It was suggested to me by Carroll’s counsel that Mr. Tettmar’s charges be used as measuring stick for the allowable charges of Mercer. [ 20 ] The approach suggested by Carroll’s counsel seems sensible to me.

I have regard to her comments about choosing a Cadillac when a Buick will do, the analogy used in Noon-Ward v Carlson , 2006 BCSC 922 , another case about the exorbitant versus the reasonably priced expert. I fix the recoverable amount by ATCO Electric for the services of Mercer as an expert at $40,000. Result [ 21 ] I saw no objection about any of the other claimed costs and so they are allowed. Counsel for the Defendant ATCO Electric is directed to prepare a revised Bill of Costs, based on the above rulings, for presentation to Carroll’s counsel. Heard on the 9 th to the 20 th day of January, 2017.

Dated at the City of Edmonton, Alberta this 24 th day of October, 2017. Douglas R. Mah J.C.Q.B.A. Appearances: Nathan Whitling, Liberty Law and Morgan Deacon, Dentons LLP for the Plaintiffs Christine Plante and James D' Andrea, QC Bennett Jones LLP for the Defendants