Barbe v Evans, 2021 ABQB 796

Court of Queen’s Bench of Alberta Citation: Barbe v Evans, 2021 ABQB 796 Date: 20211005 Docket: 1103 06675 Registry: Edmonton Between: Allan Barbe Plaintiff - and - Howard Evans, Covenant Health, operating as Misericordia Community Hospital and Alberta Health Services Defendants _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice G.D.B. Kendell _______________________________________________________

[ 1 ] In my Reasons for Judgment in Barbe v Evans , 2020 ABQB 599 , I found the Defendant Dr. Howard Evans liable for negligence for a medical procedure and breach of the duty to obtain informed consent; I dismissed Mr. Allan Barbe’s suit against the Hospital Defendants. I indicated that if the parties were unable to agree on costs, they could provide written submissions. While the parties have been able to agree on Mr. Barbe’s single costs and disbursements, three issues remain, regarding which counsel have provided written submissions: 1. Who is responsible to pay the Hospital Defendants’ costs; 2.

What amount of costs are the Hospital Defendants entitled to recover; and 3. Whether Mr. Barbe is entitled to double costs? 1. Who is responsible to pay the Hospital Defendants’ costs? [ 2 ] Mr. Barbe’s position is that the Court should grant either a Bullock Order, directing Dr. Evans to indemnify Mr. Barbe for the Hospital Defendants’ costs, or alternatively a Sanderson Order, directing Dr. Evans to directly pay the Hospital Defendants’ costs. [ 3 ] Dr. Evans’ position is that Mr.

Barbe should pay the costs of the Hospital Defendants. [ 4 ] The Hospital Defendants took no position on this issue, leaving it to be determined as between Mr. Barbe and Dr. Evans. [ 5 ] Mr. Barbe and Dr. Evans agree that in assessing same, the Court is to look to three criteria: a. Was it reasonable for the plaintiff to join both defendants in the action? b. Is there a good reason to deprive the successful defendant of its costs? c.

Was the unsuccessful defendant responsible for the action as between the co-defendants? ( Abt Estate v Ryan , 2020 ABCA 133 at para 71 ) [ 6 ] In considering this issue, I am guided by Abt Estate and Mc Allister v Calgary (City) , 2021 ABCA 25 .

I note that in general costs rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants ( Serra v Serra , 2009 ONCA 395 at para 8 ; British Columbia (Minister of Forests) v Okanagan Indian Band , 2003 SCC 71 at paras 22-26 , [2003] 3 SCR 371). [ 7 ] I also note that in Garrioch v Sonex Construction Ltd , 2017 ABCA 262 , our Court of Appeal suggested that a Bullock or Sanderson order is commonly, but not exclusively, called for where the defendant mounts a “cutthroat defence” ( at para 6) .

In Dhingra v Pham , 2004 ABQB 973 at para 25 , the Court indicated that a Sanderson order is appropriate where the unsuccessful defendant attempted to throw the blame on someone else . a. Was it reasonable for the plaintiff to join both defendants in the action? [ 8 ] Both Mr. Barbe and Dr. Evans agree that it was reasonable for Mr. Barbe to initially join the Defendants. After all, there were legitimate doubts as to which of the Defendants may have caused or contributed to Mr. Barbe’s injuries. b.

Is there a good reason to deprive the successful defendant of its costs? [ 9 ] As our Court of Appeal explained at para 73 of Abt Estate , t he second element is a judicial discretion to refuse a Sanderson or Bullock order in appropriate circumstances. T he Court must “be satisfied that it is just that the unsuccessful defendant should, either directly or indirectly, have to pay the costs of the successful defendant”.

This Court has indicated that this element requires considering whether it was reasonable for the plaintiff to keep the successful defendant in the litigation, and whether it is fair and just to require the unsuccessful defendant to pay the costs of the successful defendant: UBG Builders Inc (Re) , 2017 ABQB 791 at paras 13-4 ; see also Wainwright (Town) v 876947 Ontario Ltd , 2010 ABCA 23 at para 20 .

In Gladue v Alberta (Attorney General) , 2011 ABQB 535 at para 39 , Veit J explained that, under the second element of the test, a litigant has “an obligation to not only begin, but to maintain, reasonable conduct of litigation.” What I must determine is whether it was reasonable for Mr. Barbe to keep the Hospital Defendants in the action. [ 10 ] Mr. Barbe argues that up until well into trial, Dr. Evans’ defence appeared to be that Mr. Barbe’s injury had been caused by the Hospital Defendants, which position changed after the testimony of Dr. Evans’ defence expert, Dr. Kevin Zorn. (Although Mr.

Barbe’s submissions explored at length the changes in Dr. Zorn’s evidence between 2014, 2017 and the fourth week of trial, I consider it more appropriate to address that evidence under Mr. Barbe’s claims for double costs, where this evidence was also cited.). In brief, I disagree. [ 11 ] The trial commenced on April 23, 2019. [ 12 ] In April 2014, counsel for Dr. Evans advised counsel for Mr. Barbe that she could not provide a comfort letter that Dr. Evans would not allege that the Hospital Defendants were responsible for Mr. Barbe’s injuries because Dr. Evans’ expert was not certain what had caused Mr.

Barbe’s injuries.

[ 13 ] On April 5, 2019, counsel for Dr. Evans sent to counsel for Mr. Barbe a “comfort” letter, indicating that Dr. Evans would not be asserting negligence against the Hospital Defendants, and attached a Partial Discontinuance of Claim on a without costs basis in favour of the Hospital Defendants, signed by Dr. Evans’ counsel. [ 14 ] As no response was received, Dr. Evans’ counsel sent a follow up email to Mr. Barbe’s counsel on April 9, 2019, stating: In the event that your client keeps AHS in the action, there will no doubt be a finding at trial that the hospital was not negligent.

Since we have given you a partial discontinuance, to the extent that costs are sought by AHS against your client, our position will be that your client be solely responsible for AHS’ costs. Lastly, I note that there will be no evidence adduced on behalf of our client that any actions or inaction by the nurses fell below the standard of care. You have also not served any expert opinions that the nurses were in any way negligent…. [ 15 ] On May 2, 2019, prior to Dr. Zorn’s testimony, Dr. Evans’ counsel gave further Undertakings. In brief, Dr. Evans would not be: i.

Leading any evidence that the Hospital Defendants breached the standard of care; ii. Leading any evidence that Mr. Barbe’s injuries were caused by any breach by the Hospital Defendants; iii. Advancing any claim for indemnity against the Hospital Defendants; and iv. Leading any evidence that the irrigation fluid had been improperly overheated. [ 16 ] Accordingly, I find that by April 9, 2019, Mr. Barbe knew that Dr.

Evans would not be pointing the proverbial finger at the Hospital Defendants, and could have secured a partial discontinuance as against the Hospital Defendants, on a without costs basis. [ 17 ] I further find that by May 2, 2019, Mr. Barbe had every assurance possible that Dr. Evans was not alleging negligence on the part of the Hospital Defendants, nor was Dr. Evans going to argue that the Hospital Defendants were the non-negligent cause of Mr. Barbe’s injuries. [ 18 ] I also note Mr.

Barbe did not consent to or take no position on the Hospital Defendants’ non-suit application at the close of the Plaintiffs’ case. [ 19 ] Considering the facts recited above, I cannot accept Mr. Barbe’s submission that “as far as [he] knew, Dr. Zorn intended to testify at trial that overheated irrigation fluid caused Mr. Barbe’s injuries.” (at para 32 of Plaintiff’s Brief). Arguably, that position was reasonable at some point in the litigation, but it certainly was not after April 9, 2019. [ 20 ] It is true, as Mr. Barbe argues, that if Dr.

Evans had accepted liability, then this matter would not have continued to trial. However, denial of liability is not sufficient in itself to warrant granting a Sanderson or Bullock Order. [ 21 ] While Mr. Barbe was entitled to conduct the litigation as he saw fit, including not releasing the Hospital Defendants prior to trial and not consenting to the Hospital Defendants’ non-suit application, those decisions have consequences. Given Mr. Barbe’s litigation strategy, it is not reasonable for him to expect any contribution from Dr. Evans towards the Hospital Defendants’ costs.

The second element of the test is not made out. c. Was the unsuccessful defendant responsible for the action as between the co- defendants? [ 22 ] Although, based on my findings above, it is not necessary to address the third step of the test for a Bullock or Sanderson Order, in the event that I am wrong in my assessment of the second step, I will briefly address same. [ 23 ] As our Court of Appeal explained at para 76 of Abt Estate , t he third element involves determining whether the successful plaintiff or successful co-defendant should bear the risk of the non-recovery of costs.

In Allen (Next friend of) v University Hospitals Board , 2000 ABQB 965 , the Court determined that this element requires the Court to assess the fairness of a defendant bearing the whole of another defendant’s costs if someone else is partially liable, such as another defendant or the plaintiff. I am not required to find that the losing defendant is wholly responsible for the action, but rather it is a factor to consider when apportioning liability by way of a Bullock or Sanderson Order. [ 24 ] Even assuming that Dr. Zorn’s 2017 Report could have reasonably led Mr. Barbe to believe that Dr.

Evans was alleging that the Hospital Defendants had been negligent and the cause of his injuries (which position I will address below in terms of the application for double costs) , Mr. Barbe knew prior to the commencement of the trial that Dr. Evans had no intention of pointing the finger at the Hospital Defendants. At that time, Mr. Barbe could have discontinued the action against the Hospital Defendants on a without costs basis. Mr. Barbe had a further opportunity to release the Hospital Defendants at the non-suit application, but failed to do so. I do not find that Dr.

Evans, by April 9, 2019 was wholly, or partially responsible for Mr. Barbe maintaining the involvement of the Hospital Defendants. To paraphrase, Veit J in Gladue at para 37 , it would not be fair and just to require Dr. Evans to pay the costs that Mr. Barbe owes to the Hospital Defendants since Dr. Evans did nothing to encourage Mr. Barbe to keep them in the lawsuit for as long as he did. Indeed, Dr. Evans tried to do the opposite. The third element of the test is also not made out. d. Conclusion [ 25 ] In this case, Dr.

Evans did originally attempt to place the blame on the Hospital Defendants, which could warrant a Bullock or

Sanderson Order. However, Dr. Evans resiled from that position before the trial and tried to secure a partial discontinuance as against the Hospital Defendants on a without costs basis. In contrast, Mr. Barbe did not even join the Hospital Defendants’ non-suit application. [ 26 ] I find that Mr. Barbe is responsible for maintaining his action against the Hospital Defendants after April 9, 2019. Considering all of the circumstances, I find it fair and just that he as the successful Plaintiff, rather than Dr. Evans as the unsuccessful Defendant, should bear the costs of the successful Hospital Defendants.

In sum, it is not appropriate to grant a Bullock or Sanderson Order. 2. What amount are the Hospital Defendants entitled to recover? [ 27 ] The Hospital Defendants were entirely successful at trial and are entitled to their costs. Mr. Barbe does not disagree. Accordingly , the Hospital Defendants are seeking indemnification for the amount of their claimed Bill of Costs, prepared in accordance with

Schedule C. Mr. Barbe argues that the Hospital Defendants’ costs should be reduced to a lump sum of $50,000. Dr. Evans took no position on this issue, leaving it to be determined between Mr. Barbe and the Hospital Defendants. [ 28 ] In considering Rule 10.33 of the Alberta Rules of Court , I agree with the Hospital Defendants that: The quantum in issue between the parties was significant; The issues were important to the parties, given the seriousness of Mr.

Barbe’s injuries and the professional reputations of the healthcare professionals and the healthcare institutions; The action was complex, involving a significant number of medical experts, and medically complicated subject matter; No liability was apportioned to the Hospital Defendants; and The Hospital Defendants simplified and shortened the trial but electing to call no witnesses. [ 29 ] I also note that the Hospital Defendants shortened the trial by not cross-examining any witnesses.

Further, I granted the Hospital Defendants leave to bring a further non-suit application prior to the conclusion of the trial, which, given my ultimate findings at trial, likely would have been successful. The Hospital Defendants decision to not bring a further non-suit application shortened the length of trial. [ 30 ] While the Court has considerable discretion in awarding costs (see Rule 10.31), I see no reason why the Hospital Defendants should not be entitled to costs in accordance with

Schedule C and Division 5 – Settlement Using Court Process – of the Alberta Rules of Court. [ 31 ] Mr. Barbe submits that the Hospital Defendants’ costs in defending the action were likely considerably less than those incurred by the average defendant, arguing that the Hospital Defendants issued boilerplate Statements of Defence, baldly denying the Plaintiffs’ claims, and that while the Hospital Defendants attended Questioning of Dr. Evans, they did not participate, and their involvement at the trial was very limited.

While all of this is accurate, the Hospital Defendants were still required to review voluminous documents to determine what questions needed to be asked at discovery or trial, what expert reports may be required, ultimately obtaining expert reports, trial decisions needed to be made in relation to whether or not witnesses should be called, preparing to cross- examine witnesses if deemed necessary, addressing the non-suit application, and being fully familiar with the case, in order to make the appropriate judgment calls at the appropriate time.

Given the trial outcome, counsel for the Hospital Defendants made sound judgment calls. [ 32 ] I also note that the Hospital Defendants did not claim a disbursement for their liability experts ($26,403.59), whose reports were not tendered in evidence at the trial, nor did they seek the costs of the non-suit application, which required written briefs and oral argument. Formal Offer to Settle [ 33 ] It cannot be overlooked that Mr. Barbe had the opportunity to discontinue the action against the Hospital Defendants just over a month prior to the commencement of trial.

On March 19, 2019, the Hospital Defendants served a Formal Offer to Settle; in exchange for Mr. Barbe discontinuing the action against the Hospital Defendants, they were prepared to waive their entitlement to costs. The offer was open for acceptance until the first day of trial. I further note the email sent to Mr. Barbe’s counsel from the Hospital Defendants’ counsel attached as Exhibit “A” to the Affidavit of Sandra Dudka, included with the Hospital Defendants’ Brief which stated: As you are aware, the only expert evidence on nursing standard of care is entirely supportive.

On the basis of both your experts and ours, your client has a strong liability case against Dr. Evans. It would be unfortunate if any judgement he recovers against Dr. Evans were to be depleted to pay our clients’ double costs for a four-week trial. [ 34 ] It is also noteworthy that Dr. Evans’ counsel provided her “comfort” letter and follow up email, on April 5 and 9 respectively, providing Mr. Barbe a further assurance that he could safely discontinue the action as against the Hospital Defendants. Mr.

Barbe had the opportunity to avoid being faced with double costs of a four-week trial, supported by the comfort letter and follow-up email from Dr. Evans’ counsel. Mr. Barbe’s choice to not release the Hospital Defendants’ was an informed risk, and it is unreasonable for him to now argue that the Court should not direct appropriate costs . [ 35 ] T here is an overriding public interest in favour of settlement, which policy saves litigants the expense of trial of disputed issues, and reduces the strain upon an already overburdened Court system: Amoco Canada Petroleum Co Ltd v Propak Systems

Ltd, 2001 ABCA 110 at para 27, leave to appeal dismissed, [2001] SCCA No 383. This policy is entrenched in under Rule 4.29 of theAlberta Rules of Court. [36] As our Court of Appeal stated in Apt Estate, at paras 66-69, a formal offer automatically doubles a successful offeror’sentitlement to costs, except in “special circumstances”. No special circumstances are present here. Therefore, I agree with the HospitalDefendants that they are entitled to double costs as claimed in the Bill of Cost for items after March 14, 2019, the date of the FormalOffer to Settle. [37] Mr.

Barbe also had the opportunity to take no position on the Hospital Defendants’ non-suit application, which could haveresulted in a significantly lower cost award. Second Counsel Fee [38] Mr. Barbe submits that the Hospital Defendants should not be entitled to the second counsel fees in the sum of approximately$23,160, again citing the Hospital Defendants’ limited involvement at trial, and the considerable overlap between Dr.

Evans’ case andthe Hospital Defendants’ case. [39] In Kassam v Dragish, , 123 AR 161 (QB), Veit J advised courts to be generous in allowing second fees,acknowledging that this generosity is off-set by party-party costs which create an incentive for prudence. [40] I find that it is appropriate to grant the Hospital Defendants’ second counsel fees. The Hospital Defendants took a moderateapproach in claiming the second counsel fees only until May 9, 2019, after Dr. Evans’ counsel provided the undertakings referencedabove. The matters in issue were complex, as noted above.

Although the Hospital Defendants elected to not call any witnesses, timewould have been spent preparing for direct examination and cross examination, if deemed necessary. The trial was lengthy, as statedabove, the issues were of great importance to the parties, the trial record was significant, and the quantum in issue was high (see AlbertaProductions Corp v Canada Lands Co CLC Ltd, 2004 ABCA 25at para 2). Both Hospital Defendants’ counsel addressed the Courtduring the trial. [41] I further note that both Dr. Evans and Mr. Barbe had multiple counsel.

I suspect that the reason for same is as a result of thenature of the action as set out above: it would have been difficult in the circumstances for any party to be represented by a single counsel. Disbursement for Damages Expert [42] Mr. Barbe submits that the Hospital Defendants should not be entitled to recover their half share of the damages experts,which they shared with Dr. Evans, arguing that the full cost of the damages experts should have originally been borne by Dr. Evans, andwould thus have been recoverable from Dr. Evans, not paid as a cost disbursement to the Hospital Defendants.

The difficulty I have withMr. Barbe’s argument is that he chose not to release the Hospital Defendants from the action in April 2019, prior to the commencementof trial, on a without costs basis. The risk to Mr. Barbe was potentially being held responsible for the Hospital Defendants’ costs anddisbursements. Further, had the Hospital Defendants retained their own damages experts, as the successful party, they would have beenentitled to recover from Mr. Barbe, the full cost of their damages experts, far exceeding the 50% share claimed. It is a benefit to both Mr.Barbe and Dr.

Evans that the Defendants chose to share in this cost: Mr. Barbe is not being called on to reimburse the HospitalDefendants 100% of the costs of their own damages experts, and Dr. Evans is only required to bear 50% of the costs. The only party notbenefitting from this arrangement is the Hospital Defendants, and it is unreasonable for them to be deprived of reimbursement, given theoutcome of the trial [43] I agree with the Hospital Defendants that the choice of co-defendants to share in the costs of damages experts should beencouraged by the Court in light of Rule 1.2 of the Alberta Rules of Court.

To penalize a litigant for conducting themselves in a timelyand cost-effective way, runs contrary to Rule 1.2. Conclusion [44] An award of costs should be a “fair and reasonable” amount reflecting what the unsuccessful party could reasonably expect topay: Strategic Acquisition Corp v Multus Investment Corporation, 2017 ABQB 297at para 18, aff’d 2018 ABCA 63 at para 10; Serraat para 12. I am satisfied that the amounts set out in the Hospital Defendants’ Bill of Costs are reasonable, and thus the HospitalDefendants are entitled to be reimbursed for the amounts claimed. 3. Whether Mr.

Barbe is entitled to double costs? [45] In Alberta, the weight of authority is that a successful party is generally entitled to partial indemnification at a levelapproximating 40-50% of actual costs: McAllister at paras 37, 41. However, enhanced costs may be awarded in appropriate cases. [46] Mr. Barbe argues that Dr. Evans should pay double costs as

i) Dr. Evans’ conduct unnecessarily lengthened the action and asii) Dr. Evans did not comply with Rule 5.38 of the Alberta Rules of Court, in failing to advise the other parties, in writing, that his experthad changed his opinion. [47] In support of his position, Mr. Barbe cites GO Community Centre v Clark Builders and Stantec Consulting Ltd, 2020 ABQB203, where Renke J undertook a comprehensive discussion of the issue of costs and enhanced costs.

Given the plaintiff’s unreasonableopposition to procedural orders which lengthened the action, late provision of evidence which necessitated an application, and negligent(but unintentional) failure to disclosure an important document, Renke J determined that the

Schedule C tariff would not adequatelycompensate the defendants for their legal expenses (at paras 225-9). Accordingly, he applied a multiplier of 1.5 (at para 233). [48] In resisting Mr. Barbe’s claim, Dr. Evans submits that this action was not complex. I do not agree. The trial was lengthy, theTrial Binders were large and numerous, there were multiple experts, testifying to complicated medical matters. The knowledge of

medical vocabulary and procedures required to understand Mr. Barbe’s medical conditions at different points in time was significant. However, complexity in itself is insufficient to warrant enhanced costs. [ 49 ] I begin by considering Mr. Barbe’s submission that the action was lengthened by changes in Dr. Evans’ position regarding the Hospital Defendants, as informed by changes in Dr. Zorn’s expert opinion, particularly in his 2017 Export Report. Dr. Zorn’s original Report of September 1, 2014, stated that the injury to Mr.

Barbe’s bladder had been caused by his comorbidities, post-operative urinary retention, and multiple traumatic and unsuccessful catheterization attempts. Mr. Barbe suggests that in Dr. Zorn’s Report of May 30, 2017, and particularly paras 37-8, Dr. Zorn attributed the likely cause of Mr. Barbe’s injury to irrigation fluid which had been overheated by the nursing staff. In brief, this statement of Dr. Zorn’s revised opinion is not quite accurate. [ 50 ] In his 2017 Report, at para 33, Dr. Zorn expressly agreed with Mr. Barbe’s expert, Dr.

Woods, that it was unlikely that the irrigation fluid had been heated by the GLL Laser to the point of burning the bladder. Dr. Zorn went on state the following (at paras 37- 8): I am now aware that there have been cases where irrigating fluids have been overheated mistakenly by the nursing team while the fluid was outside the patient’s body, and have burnt the patient’s bladder diffusely and homogenously (meaning through the entirety of the bladder). Since the time of my first report, there has been a journal

article published on this type of complication, from the French Urological Association. Moreover, it is to be assumed that heated body temperature water was used for the procedure. These reported cases where the water to irrigate the bladder during surgery was too warm cause a diffuse, delayed bladder injury without any perforation. During transurethral procedures, irrigation bags are often heated in a warming unit, however, the temperature of the bag and fluid irrigation are not measured or documented.

Tissue temperature exposure >45-50 C for prolonged periods, can result in cellular damage and resultant fibrosis. Given the findings following the procedure or a pan-bladder, diffuse and homogenous fibrosis, this would be more in keeping with such an event rather, (sic) than stating a surgeon, with a small laser light fibre, painted over the entire bladder without ever perforating the thin 3- 5mm bladder wall. [ 51 ] Contrary to Mr. Barbe’s submission, it is inaccurate to describe these passages as demonstrating that Dr. Zorn had changed his mind and “opined that the likely cause for Mr.

Barbe’s injury was irrigation fluid which was overheated by the nursing staff” (at para of 20 of Plaintiff’s Brief). Instead, these passages acknowledged new evidence about the occurrence of irrigation fluids being mistakenly overheated by the nursing team. Nowhere in these passages did Dr. Zorn state that the irrigation water had been overheated, nor did he categorically attribute Mr. Barbe’s injury to overheated irrigation water. Further, Dr. Zorn did not state that the Hospital Defendants had in fact overheated the irrigation fluids. [ 52 ] I note that Dr.

Zorn went on to state the following (at para 56): Regarding the cause of Mr. Barbe’s complications, I continue to hold the opinion set out in my first report pages 5-7, which is that Mr. Barbe’s combination of poor medical health, multiple false passages, and trauma injury on post-operative day 1, with exceptional inflammation/infection and delayed scarring, contributed to his urinary incontinence and scarred bladder. In addition, based on the journal

article published by the French Urological Association, referenced above, which was published after the time of my first report, we are now aware that overheated water can cause the homogenous bladder damage experienced by Mr. Barbe, even at temperatures as low as 45-50C. ( Emphasis added ) [ 53 ] Similar comments are found at paras 67, 72, and 88. In my view, these comments do not represent a change in Dr. Zorn’s initial opinion, but rather a supplemental explanation for the presentation of Mr. Barbe’s bladder. [ 54 ] I do note that at para 92, the last paragraph in his 2017 Report, Dr.

Zorn stated: On a balance of probabilities, I am of the opinion that other mechanisms of pan-bladder injury and fibrosis, such as hot water irrigation during the case (as routinely done for transurethral bladder/prostate surgery) for prolonged periods, as has been more recently reported in the medical literature caused Mr. Barbe’s bladder injury and is more consistent with the appearance of the temporal, not immediate, events following Mr.

Barbe’s procedure. ( Emphasis added ) [ 55 ] Yet, missing from this passage was a fulsome recitation of the “other mechanisms” of pan-bladder injury and fibrosis as set out in Dr. Zorn’s 2014 Report, and throughout his 2017 Report. The question is - does this statement in the final paragraph of Dr. Zorn’s 2017 Report mean that Dr. Zorn’s opinion regarding the cause of Mr. Barbe’s injury had changed? In particular, did he attribute that injury to overheated irrigation fluid? The clear answer is no. There is nothing to suggest that Dr.

Evans’ original theory of causation, as set out in his 2014 Report, was being abandoned. [ 56 ] I now turn to Mr. Barbe’s submission that Dr. Evans never provided Rule 5.38 notice that Dr. Zorn’s opinion had changed. As the preceding discussion foreshadows, I am not satisfied that Rule 5.38 was contravened by Dr. Evans. While Dr. Zorn’s statement in the final paragraph of his 2017 Report could have been more clearly expressed, I find that it was never Dr. Zorn’s position that the cause of Mr. Barbe’s bladder injury had been solely due to overheated water. [ 57 ] In sum, I do not find that Dr.

Evans in any way abused the litigation process, or engaged in any conduct to delay the proceedings or exacerbate the expense of the trial. Stantec Consulting Ltd is clearly distinguishable. [ 58 ] In the circumstances, there is no basis to award Mr. Barbe enhanced, much less double costs. DECISION

[ 59 ] In accordance with the parties’ agreement, Dr. Evans is directed to pay costs to the Plaintiffs in the amount of $277,135.40. [ 60 ] Mr. Barbe’s applications for a Sanderson or Bullock Order and double costs are dismissed. Mr. Barbe is directed to pay fees and disbursements to the Hospital Defendants in the sum of $194,039.93, as per the Bill of Costs attached to the Hospital Defendants’ Brief. Heard on the 4 th day of February, 2021. Dated at the City of Edmonton, Alberta this 5 th day of October, 2021. G.D.B. Kendell J.C.Q.B.A.

Appearances: Shelagh McGregor, Iman Jomha Weir Bowen LLP for the Plaintiff Barbara Stratton QC, Daniel Morrow, Emily Hole Bennett Jones LLP for the Defendant Dr. Evans Jennifer Janz Field LLP for the Hospital Defendants J. Mark Jackson, Q.C. Field LLP for the Hospital Defendants