Harling v Lauf, 2021 ABQB 850

Court of Queen’s Bench of Alberta Citation: Harling v Lauf, 2021 ABQB 850 Date: 2021028 Docket: 1203 11659 Registry: Edmonton Between: Kevin Harling and Kevin Harling as the Personal Representative of the Estate of Peyton Harling Plaintiffs - and - Dr. George Lauf, Alberta Health Services, Alberta Health Services Owning and Operating the University of Alberta Hospital and the University of Alberta Hospital Defendants _______________________________________________________ Endorsement on Costs of the Honourable Mr. Justice J.S. Little _______________________________________________________ I.

Overview [ 1 ] The parties are unable to agree on the quantum of costs following a five week trial in which I dismissed a claim (reported at 2021 ABQB 235 ) by Mr. Harling and his wife’s estate against a physician and Alberta Health Services/University of Alberta (AHS/UAH) for negligence and battery. [ 2 ] Counsel made oral submissions September 14, 2021 and agreed that further written submissions, now received, were in order. [ 3 ] The draft bills of costs submitted by counsel for AHS/UAH and Dr. Lauf are summarized below: AHS/UAH Fees $161,387.50 based on Column 4

Disbursements 45,214.66 Other charges 349.70 GST 0 Total $206,951.86 Dr. Lauf Fees $169,865.00 based on Column 4 Taxable disb. 21,531.57 Non-taxable disb. 60,416.50 Other charges 6,757.87 GST 9,907.72 Total : $268,478.66 II. Plaintiffs’ Objections [ 4 ] While there are other less consequential concerns, the objections of plaintiffs’ counsel to the two bills of costs may be grouped into four categories: 1. There was no need for either defendant to retain second counsel for the trial. 2.

Certain experts for whom disbursements are claimed did not testify at the trial, one expert who provided two reports billed at a higher rate for the second, and certain experts’ invoices are excessive. 3. Pre-trial counsel fees for discoveries/questioning should be prorated for days when the full second half day was not needed, and written arguments were permitted but not required. 4.

Costs should be assessed on a lower column based on an agreement as to damages reached before the trial on liability. [ 5 ] A considerable portion of the fees in each bill of costs is comprised of double costs due to the plaintiff’s rejection of a formal offer made before trial which reflected the ultimate trial decision: Rule 4.29(1). Mr. Kirwin does not take issue with this. 1.

Second counsel [ 6 ] Defence counsel argue that our Court of Appeal looks to a number of factors to determine whether second counsel fees are justified, including the complexity of the issues, the importance of the issues to the parties, the size of the trial record, and whether second counsel addressed the court: Alberta Productions Corp v Canada Lands Co , 2004 ABCA 25 at para. 2 . [ 7 ] The claimed negligence aspect of the claim originally was made against a number of radiologists, emergency room physicians, and transplant surgeons. Before trial, that was narrowed down to the negligence of one radiologist.

But that negligence claim was still complex since it required an understanding of a number of medical specialties including radiology, liver transplantation and its complications, and infections and their complications. It was not unreasonable for defence counsel for the doctor to share responsibility for examination and cross-examination of specialists in different fields. [ 8 ] The battery aspect of the claim was novel and therefore of importance to the physician and, more particularly, to AHS and UAH.

I do not find unreasonable that two defence counsel shared responsibility for the carriage of different portions of that aspect of the trial. [ 9 ] This was scheduled as a five week trial, and most days were fully utilized. Mr. Kirwin as counsel for the plaintiff is to be commended for his ability to maintain his focus and stamina over the course of a trial of this length, but that does not make unreasonable,

in a trial with an extensive record, the decision of defence counsel to split trial duties and to have second counsel address the court. [ 10 ] Lastly, while obviously not contemplated in Alberta Productions Corp. , this trial was scheduled pre-Covid but conducted remotely because of travel and courtroom restrictions resulting from the pandemic. That involved perhaps even more complicated logistics than if all witnesses and counsel had appeared in person, since connections had to be made remotely and documents shared with witnesses online. Again, Mr.

Kirwin was able to handle these duties on his own, but that does not mean that defence counsel, who often relied on second counsel to assist with the electronic aspects, were required to do the same. 2. Cost of Experts [ 11 ] Mr. Kirwin points out that:

a) Certain of the experts whose invoices were included in the bills of costs did not testify. Defence counsel argues that, as issues narrowed and individual specialists were dropped as defendants, the need for all experts similarly narrowed and that one expert was retained to address an expert report ultimately not relied upon by the plaintiff. The test is whether it was reasonable at the time of retention of the expert to do so ( Seidel v Kerr, 2004 ABCA 157 at para 15 ), and in this case I am satisfied by defence counsel’s arguments in that regard.

b) One expert had two rates with the second higher than the first. I am satisfied by the explanation of defence counsel that the reports were prepared three years apart, and it is therefore not unexpected that there might be a rate increase. 3. Pro-rating of half days of questioning/written arguments [ 12 ] For reasons given in III below, I do not intend to parse the time entries for questioning. And I note that

Schedule C includes an amount for written argument when requested or, as was the case here, permitted by the trial judge. 4. Appropriate Column [ 13 ] Counsel did reach agreement on damages shortly before the trial that had the effect of reducing the claim from Column 4 to Column 1. I accept the position taken by my colleague Yamauchi, J. in UBG Builders Inc (Re) , 2017 ABQB 791 and for the reasons given therein at paras 41-42 that the initial amount claimed in the statement of claim is what fixes the appropriate column. III. Higher Level Review [ 14 ] Thus far my review of the bills of costs has followed the familiar pattern of working through

Schedule C costs, though admittedly not with particular rigour. [ 15 ] In cases such as these, Mr. Hawreluk as counsel for Dr. Lauf argues that the better approach is that recently confirmed by our Court of Appeal in McAllister v The City of Calgary , 2021 ABCA 25 . In that case, a successful litigant in a novel claim appealed a trial judge’s determination of

Schedule C costs on the basis that the amount, about 17% of actual costs, did not come close to indemnifying him for his actual costs. The Court of Appeal remitted the matter back to the trial judge on the basis that a proper costs award ought to reflect a reasonable level of indemnification that may or may not be provided for by strict adherence to

Schedule C and that the costs listed in

Schedule C may be used as a guide or not at all. [ 16 ] Mr. Kirwin argues that McAllister is distinguishable because there, the successful party was seeking an increase in indemnification, whereas here the successful party has based its entitlement on

Schedule C costs as opposed to some other level of indemnification. [ 17 ] Counsel for Dr. Lauf confirmed that the total fees billed to his client for this matter were in excess of $1.1M, while what is being sought here inclusive of fees and disbursements is $268,000.

At 24% of full indemnification, it is not far off from the 17% found to be too low by the Court of Appeal in McAllister . [ 18 ] In my view, this lends credence to the arguments made by defence counsel that scrutinizing the costs of experts or the need for their reports or the hours versus half day increments of time in this complex and drawn out litigation is not an exercise that requires the court’s involvement. The level of indemnity sought by each defendant is far less than it would be entitled to had it framed its

entitlement differently, and using

Schedule C as the framework for costs does not limit the scope of my review of their reasonableness. IV. Conclusion [ 19 ] The plaintiffs’ objections are dismissed, and the respective Bills of Costs presented at the September 14, 2021 application are approved. [ 20 ] Thank you to counsel for the professional manner in which they approached this aspect of the litigation. Heard on the 14 th day of September, 2021. Written submissions received October 21, 2021. Dated at the City of Edmonton, Alberta this 28 th day of October, 2021. J.S. Little J.C.Q.B.A. Appearances: Mr. P. Kirwin for Mr.

Harling and the Estate of Peyton Harling Mr. D. Hawreluk & Ms. A. Archer for Dr. Lauf Mr. D. McLaughlin & Ms. J. Janz for AHS/UAH