Phillips v Westcan, 2021 ABQB 158

Court of Queen’s Bench of Alberta Citation: Phillips v Westcan, 2021 ABQB 158 Date: 20210226 Docket: 1903 06879 Registry: Edmonton Between: Randall Phillips Applicant - and - Westcan Bulk Transport Ltd. Respondent _______________________________________________________ Ruling on Costs of the Honourable Mr. Justice G.S. Dunlop _______________________________________________________ [ 1 ] On December 10, 2020 I issued my decision in this matter, dismissing the application and reserving on the issue of costs. I issued a corrigendum on December 11, 2020, correcting the spelling of Mr.

McCutchan’s name. [ 2 ] The Respondent, Westcan Bulk Transport Ltd. provided written submissions on costs on January 14, 2021 and the Applicant, Randall Phillips provided written submissions on costs on January 27, 2021. [ 3 ] Westcan’s proposed bill of costs, calculated under column 2 of

Schedule C, consists of:

Fees 4,685.00 GST on fees $234.25 Taxable disbursements other than experts $1,695.59 GST on taxable disbursements $84.78 Non-taxable disbursements $80.00 Other charges $659.60 GST on other charges $32.98 Expert fees $53,573.02 GST on expert fees $2,058.75 TOTAL $63,103.97 [ 4 ] Mr. Phillips agrees that Westcan is entitled to costs of the application under column 2 of

Schedule C, but disputes Westcan’s entitlement to costs of six expert reports submitted by Westcan in affidavit form. The amount in issue is those fees plus GST, for a total of $55,631.77. [ 5 ] The parties agree that Westcan’s entitlement to the expert fees turns on whether they were reasonable at the time they were incurred.

Westcan submits that it obtained the expert reports to show that its “alcohol and drug policy was reasonably necessary to the accomplishment of a legitimate work-related purpose” and that “it is impossible to accommodate individual employees sharing the characteristics of the Applicant without imposing undue hardship on the employer.” I disagree. As I stated at paragraphs 8 – 11 of my reasons issued in December, the expert evidence submitted by the Westcan was neither relevant nor necessary, based on common knowledge and Mr. Phillips’ Originating Application and Affadavit, which defined the issues in the action.

It was not reasonable for Westcan to incur the costs of the expert reports. [ 6 ] I set Westcan’s costs payable by Mr. Phillips at: Fees 4,685.00 GST on fees $234.25 Taxable disbursements other than experts $1,695.59 GST on taxable disbursements $84.78 Non-taxable disbursements $80.00 Other charges $659.60 GST on other charges $32.98 TOTAL $7,472.20 [ 7 ] Mr. Phillips was entirely successful on this costs application. He is entitled to his costs payable by Westcan in the amount of $1,350.00 plus disbursements and GST, based on item 12 of

Schedule C (submission of written argument at the request of the trial judge), under column 1, because the costs in issue were less than $75,000. Costs payable to Mr. Phillips may be set off against costs payable by him. Heard by way of written submissions on January 14 and January 27, 2021. Dated at the City of Edmonton, Alberta this 26 th day of February, 2021 . G.S. Dunlop J.C.Q.B.A. Appearances: Wilson McCutchan Taylor Janis LLP for the Applicant

Donald J. Wilson and Allison Murray Banerjee DLA Piper (Canada) LLP for the Respondent