KS v Willox, 2017 ABQB 71

Court of Queen’s Bench of Alberta Citation: KS v Willox, 2017 ABQB 71 Date: 20170201 Docket: 0403 07714 Registry: Edmonton Between: Tim Wood, Litigation Representative of K.S., an Infant Plaintiff - and - David Willox and Brian Muir Defendants _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice M.T. Moreau _______________________________________________________ I. Introduction [ 1 ] The Defendants were successful at trial.

The parties have been unable to reach an agreement as to certain disbursements on the Defendants’ Bill of Costs in two areas: 1) fees of experts whose reports were never served and who were not called to testify at trial; and 2) travel expenses of counsel for the Defendants. [ 2 ] The parties agreed to deal with the issues by written submission.

II. Background Facts [ 3 ] The Defendants claim expert fees as follows: Dr. Cave $3,007.08 Dr. Iglesias $6,240.80 Dr. Liston $2,800.00 Dr. Hahn $5,198.55. [ 4 ] Dr. Cave, a general practitioner, was retained very early in the litigation and gave verbal opinions on the standard of care to counsel for the Defendants, but ended his clinical practice prior to providing any written expert opinion. Concerned that his trial testimony would come at a time well into his retirement, the Defendants did not seek a written opinion from him. [ 5 ] Dr.

Iglesias, a general practitioner and a resident of Gibbons, British Columbia, provided verbal opinions on the standard of care and causation. By the time the litigation had progressed to a point where a written opinion was necessary, counsel for the Defendants had located Dr. Cameron, who practised within Alberta and who was able to provide a written report in time for the Judicial Dispute Resolution (JDR). The Defendants relied on Dr. Cameron’s opinion at the JDR and trial. [ 6 ] Dr.

Liston, an obstetrician and gynecologist and a resident of Vancouver, British Columbia, provided verbal opinions on the standard of care and causation. At trial, the Defendants relied on the expert opinions of Dr. Young and Dr. Chari. Given that Dr. Young was nearing the end of his clinical practice, the Defendants kept Dr. Liston on retainer in case Dr. Young retired prior to, or was unable to, testify at trial. [ 7 ] Dr. Hahn, a developmental pediatrician, conducted a paper review of K.S.’ medical records and provided an opinion as to his developmental status and prognosis. Dr.

Hahn relinquished his membership in the College of Physicians and Surgeons in 2010 prior to providing a written opinion, making it necessary to retain a new expert. [ 8 ] The Defendants are also seeking to recover a total of $6,550.27 as disbursements incurred by counsel in travelling to meet with their clients and experts: 1. Client meetings: - one meeting on an urgent basis in 2010 with Dr. Willox in Peace River, where he resides, at a cost of $4,326.90 to discuss his ability to continue the litigation after he was diagnosed with a brain tumour; - one meeting in 2012 with Dr.

Muir in Grande Prairie, where he resides, at a cost of $513.15. 2. Expert meetings: - one trip to Hinton in 2006 at a cost of $128.50, to meet with Dr. Cave; - one trip to Calgary in 2006 at a cost of $149.00, to meet with Dr. Taylor, who provided a written report but did not testify at trial; - one trip to Red Deer in 2006 at a cost of $75.50, to meet with Dr. Young, who provided an expert report and testified at trial; - one trip to Vancouver and Victoria in 2009 at a cost of $1,357.22, to meet with Dr. Liston, Dr. Iglesias and Dr. Taylor. III.

The Law [ 9 ] Rule 10.31 of the Alberta Rules of Court , Alta Reg 124/2010 provides: 10.31(1) After considering the matters described in rule 10.33 [ Court considerations in making a costs award ], the Court may order one party to pay to another party, as a costs award, one or a combination of the following: (

a) the reasonable and proper costs that a party incurred to file an application, to take proceedings or to carry on an action, or that a party incurred to participate in an application, proceeding or action... [ 10 ] In McCabe v Westlock Roman Catholic Separate School District No 110 , 1999 ABQB 666 at para 76 , [1999] 10 WWR 461, the Court identified a number of factors which are relevant in determining whether a disbursement claimed was reasonable:

a) the length of the trial;

b) its complexity;

c) the nature and number of the issues involved in the trial;

d) the degree of contest as to evidentiary matters;

e) the degree of contest as to credibility of witnesses, including professional expert witnesses;

f) the nature and number of the defenses mounted;

g) the requirement for and use of experts;

h) the use of models, tests and scientific evidence;

i) the nature and amount of damages at issue;

j) the relationship of the expenses claimed as costs to the amounts at issue in damages;

k) any agreement of counsel to share specific expense items. [11] The onus is on the party claiming the disbursement to prove on a balance of probabilities that the nature and amount of thedisbursement claimed are reasonable in the circumstance: Petrogas Processing Ltd v Westcoast Transmission Co (1990), (AB KB), 105 AR 384, 1990 CarswellAlta 51 at para 56 (QB); McCabe, at para 77. [12] The timing for assessing the reasonableness of an expense is when it was incurred: Seidel v Kerr, 2004 ABCA 157 at para15, 348 AR 154.

In Petrogas, O’Leary J. (as he then was) noted: 56 When considering the reasonableness or otherwise of an expenditure made by the defendant I must view the matter through the eyesof the defendant and in light of the problem facing it when the expenditure was made. The test of reasonableness is not, in my opinion,entirely based on the importance of the expenditure to success at trial. Hindsight may show that some liabilities assumed were, in theend, of little or no benefit. The question is whether the expense was reasonable and proper in the light of the circumstances which existedat the time it was incurred.

The issues raised from time to time by the pleadings and by discovery and production are significantcircumstances.

The magnitude of the expenditure in relation to the amount at risk in the proceedings is another important consideration.In all cases the party taxing costs has the burden of showing that both the nature of the expense and its amount were reasonable andproper in the circumstances. [13] O’Leary J. also noted at para 54 that the Court has a discretion to allow the costs of experts for investigations and inquiriesand for assisting in the conduct of the trial, even though these experts do not attend and testify, citing Nova, An Alta Corp v GuelphEngr Co (1988), (AB KB), 60 Alta LR (2d) 366, 89 AR 363 at 369-70 (QB); see also Kon Construction Ltd vTerranova Developments Ltd, 2014 ABQB 665 at para 57, 35 CLR (4th) 102.

In Patterson v Hryciuk, 2005 ABQB 136, 12 CPC (6th)378, a medical negligence action, Macklin J. allowed a disbursement relating to counsel’s consultations with an anaesthesiologist early inthe litigation to obtain strategic advice and to prepare counsel for examinations for discovery. [14] In Forsberg v Naidoo, 2011 ABQB 705 at para 22, 525 AR 65, Thomas J. set out three criteria for determining whether costsclaimed by an expert not called at trial should be awarded, namely: the anticipated relevant area of expertise, how that expertise isexpected to be relevant to the case, and why that evidence did not prove to be relevant at trial. [15] The Court has the discretion to order the payment of a portion of the costs claimed, as was done by Johnstone J. in McCabe atparas 117-122.

IV. Discussion A. Disbursements in relation to experts 1. Parties’ Positions [16] Counsel for the Defendants submit that they have set out a sufficient evidentiary basis for charging their expert fee accountsto the Plaintiff. They maintain that while none of the experts whose invoices are in dispute testified at trial, each provided verbalopinions on issues that were in dispute both at the time the expense was incurred and at trial.

Although these experts were not calledupon to testify at trial, this was in large measure due to the protracted nature of the litigation and to reasons beyond the Defendants’control. [17] Counsel for the Plaintiff refer to the general rule that only one expert can be called to testify on any one subject, unless theCourt otherwise permits (Rule 8.16(1)).

The Plaintiff notes that the Defendants are seeking reimbursement in relation to consultationswith three general practitioners and two obstetricians, but submit that they have not established that it was reasonable to retain multipleexperts to give evidence on the same issues. [18] The Plaintiff further submits that: - Dr. Cave’s retirement from clinical practice in 2010 would not affect his evaluation of the standard of care expected of Dr. Willoxin 2000; - the decision to proceed to JDR was made about 10 months before the JDR was held; if Dr.

Iglesias was retained before the JDRwas scheduled, he would have had 10 months to prepare an expert report, but the Defendants instead chose to retain Dr. Cameron toprepare an expert report; if Dr. Iglesias was retained after the JDR was scheduled, the Defendants should have secured his commitmentto prepare an expert report before incurring fees of $6,240 in relation to their consultations with him;

- bearing in mind the “one expert per subject area” rule, the Defendants have not provided an adequate explanation for the retainer of Dr. Liston, given that Dr. Young provided an expert report and testified on the same issues; - it is unclear what issues Dr. Hahn addressed in his paper review and verbal opinion, upon which other specialists were then required to comment due to the passage of time. 2. Analysis [ 19 ] The trial in this matter was lengthy and complex. It involved a number of difficult evidentiary and legal issues and a claim for significant damages.

Professional expert witnesses were required. [ 20 ] The Defendants indicated in their written submission of January 13, 2017 that they are claiming $3,007.08 for Dr. Cave’s services. Dr. Cave was retained very early in the litigation to provide an opinion on the standard of care and, due to the protracted nature of the litigation, he ceased practice before providing a written opinion, an event over which the Defendants had no control.

However, I agree with Plaintiff’s counsel that retirement from clinical practice is not by any means fatal to providing expert opinions, although there may be issues of weight to be attached to the opinion and the availability of Dr. Cave to testify if his evidence was given well into his retirement. There would appear to be some duplication between the purpose for which his services were sought as a general practitioner, i.e. the standard of care, and the opinions sought from Dr. Iglesias, which included the standard of care.

Considering all of these circumstances, I allow one-half of the total amount claimed for Dr. Cave. [ 21 ] The Defendants claim $6,240.80 in relation to Dr. Iglesias’ services. Dr. Iglesias is a general practitioner and a resident of British Columbia. His opinions were sought on standard of care and causation. I find that the Defendants cannot be faulted for securing the services of Dr. Cameron, who practised within Alberta. However, there was no evidence as to whether the Defendants sought the written opinion of Dr. Iglesias for the JDR and were refused prior to retaining Dr. Cameron.

Nor is this a situation of a brief consultation with Dr. Iglesias, judging from the amounts of his invoices. The evidence falls short of discharging the Defendants’ onus in relation to the payment of the full amount claimed for Dr. Iglesias. Recourse to an Alberta based physician was reasonable in the circumstances, but the Plaintiff should not be expected to be fully responsible for this choice. I allow one-half of the total amount claimed for Dr. Iglesias. [ 22 ] The Defendants claim $2,800 for Dr. Liston’s services. Dr. Liston is a Vancouver obstetrician and gynecologist.

He provided opinions on the standard of care and causation. The Defendants then opted to retain Dr. Young, who had only recently retired from clinical practice at the time of trial, but remained very involved in other professional duties. While hindsight should not be applied to determine the reasonableness of the selection of Dr. Liston at an earlier point in the litigation, the Plaintiff should not in my view be burdened financially with the full weight of the Defendant’s decision to replace Dr. Liston with Dr. Young, if there were legitimate fears about Dr. Young’s ability to testify at trial.

I would allow one half of the amount claimed. [ 23 ] The Defendants claim $5,198.55 for Dr. Hahn’s services. He conducted a paper review of K.S.’ medical records and provided an opinion as to his developmental status and prognosis. I find that the Defendants could not have foreseen his relinquishment in 2010 of his membership in the College. The Defendants have met their onus of establishing the purpose of his retainer. I allow the full amount claimed for Dr. Hahn. B. Travel expenses 1.

Parties’ Positions [ 24 ] Counsel for the Defendants note that both Defendants resided outside the judicial district in which the Plaintiff elected to sue. The Defendants cite Petrogas for the proposition that reasonable travel expenses associated with their attendance upon counsel, or counsel’s attendance upon them, are proper disbursements: 82 Where a party is in a jurisdiction or judicial district other than the site of the litigation and the circumstances warrant meetings with counsel, the travelling expenses incurred for the purpose of such meetings should be taxable.

Where meetings are necessary there will inevitably be travelling expenses for either counsel or the party. ... 84 ... Because the defendant and its counsel are in Vancouver and Calgary respectively, it is a proper case for the taxation of counsel’s travel expenses for necessary attendances in Vancouver in connection with the litigation... [ 25 ] Counsel for the Defendants note that they claimed the cost of only a single meeting between counsel and each of the Defendants, despite the protracted nature of the litigation.

They argue that in all of the circumstances, disbursements relating to the travel expenses incurred were reasonable.

As for the meetings claimed between counsel and experts, the Defendants refer to Petrogas at para 85, where O’Leary J. approved as reasonable the expense of counsel travelling to London, England to consult with an expert. [ 26 ] The Defendants argue that at the time the travel expenses were incurred, video-conferencing and other means of electronically meeting with an expert were less developed, and that face-to-face meetings were reasonable in the circumstances. [ 27 ] The Plaintiff maintains in response that it was unreasonable to incur travel expenses when the Plaintiff could have retained and instructed experts by telephone.

The Plaintiff notes in particular that over $4,000 of the $6,560.47 claimed in travel expenses arose from a single trip by counsel to Peace River to meet with Dr. Willox after he had been diagnosed with a brain tumor. The Plaintiff argues that it is unreasonable to require JS, as former Litigation Representative, to pay for a private charter with no more explanation than that the trip was urgent having regard to a Defendant’s medical condition and winter driving conditions.

The Plaintiff maintains that the Defendants have not discharged the onus upon them to prove that this expense for a chartered flight was reasonable at the time. 2. Analysis

[ 28 ] As noted in Petrogas at para 56 and McCabe at para 77 , the overriding consideration is the reasonableness of the disbursement in light of the circumstances existing at the time it was incurred. The onus is on the party claiming the disbursement to prove on a balance of probabilities that the amounts claimed are reasonable in the circumstances. [ 29 ] I disallow the expense of $4,543.25 claimed in relation to the chartered flight between Edmonton and Peace River of January 17, 2010. In my view, the facts that Dr.

Willox had been diagnosed with a brain tumor and highway conditions are insufficient to justify such a large disbursement. Inclement weather conditions are frequent in northern Alberta, and there is no evidence that other alternative means of reaching Peace River to chartering a plane were explored, including the combination of air travel to a point nearer Peace River serviced by regular airlines plus a shortened highway commute from that point, or simply waiting for weather to clear. There was no evidence as to the precise nature of the urgency of Dr.

Willox’s condition that would render unreasonable the alternative of waiting for the weather or looking to reasonable alternative means of travel. As noted by counsel for the Plaintiff, the chartered flight was booked three days in advance, and therefore cannot be considered an 11 th hour response to the health of Dr. Willox or the inclement weather.

I allow a disbursement for the full cost of a regular return flight on Northern Air at 2010 prices, and the reasonable disbursements incurred in relation to any accommodation, ground transportation and meals for that trip. [ 30 ] As for the balance of the travel expenses claimed, I reject the Plaintiff’s argument that retainer of and consultation with experts could have been accomplished by telephone. I accept the unchallenged assertion of the Defendants that at the time, video- conferencing was less frequently resorted to than is currently the case.

In light of the seriousness and complexity of the claims advanced against the two Defendants, it was not unreasonable to seek an in-person consultation in which counsel would be assured of the undivided attention of the expert. [ 31 ] I allow those flights, taxis, rental car and parking charges and meals substantiated by receipts up to June 9, 2014, when JS’ role as Litigation Representative was terminated by the order of the case management justice. While I have taxed down the invoices of Dr. Cave and Dr.

Iglesias to whom Defendants’ counsel travelled, I note that they were consulted in one trip to Vancouver and Victoria along with Dr. Taylor. Accordingly, I will not tax down the costs claimed for this one trip at $1,357.22. As for any hotel accommodation charges substantiated by receipts, these will be taxed at the applicable rate applied at the time by the taxing officer, as I do not consider a room on the gold floor of a luxury Vancouver hotel to be reasonable in the circumstances. [ 32 ] Dr. Taylor provided a written report but he was not called at trial.

The travel expenses in relation to a second trip to meet with Dr. Taylor in Calgary are approved at $149.00. The travel expenses to meet with Dr. Young in Red Deer in 2006 are approved at $75.50. Dated at the City of Edmonton, Alberta this 1 st day of February, 2017. M.T. Moreau J.C.Q.B.A. Appearances: Mr. Joseph V. Miller, Q.C. Ms. Shelagh L. McGregor Mr. Michael W. McVey for the Plaintiff Tim Wood, litigation representative of K.S., an infant Mr. William Hembroff for the Defendants David Willox and Brian Muir