Couch v Olatiregun, 2023 ABKB 402

Court of King’s Bench of Alberta Citation: Couch v Olatiregun, 2023 ABKB 402 Date: 20230706 Docket: 1801 07070 Registry: Calgary Between: Terence Gerrard Couch Plaintiff - and - Gabriel Kehinde Olatiregun Defendant _______________________________________________________ Ruling on Costs of the Honourable Justice W.P. Sullivan _______________________________________________________ Introduction [ 1 ] On February 24, 2023, I rendered my decision in Couch v Olatiregun , 2023 ABKB 104 , and awarded Mr.

Couch $4,722.00 in damages for minor injuries he sustained and accompanying expenses he incurred as a result of a motor vehicle accident. [ 2 ] Despite knowing the time and date set for trial, the self-represented Defendant, Mr. Olatiregun, was not present. [ 3 ] Counsel for Mr. Couch is now seeking costs in the amount of $12,378.00, a value close to three times the damages award. The Costs Submission was made without notice to the Defendant.

Facts [ 4 ] Details of the accident are summarized in Couch . [ 5 ] Briefly, the “fender-bender” occurred on the 13 th of April, 2017, when Mr. Couch abruptly stopped in a left turning lane upon the flashing green turn signal becoming amber. Mr. Olatiregun subsequently rear-ended him. [ 6 ] As a result of the accident, Mr. Couch suffered a minor WAD injury (as defined in the Minor Injury Regulation , Alta Reg 123/2004 , s 1(1)(h)) and an unspecified injury to his ribs. It was clear from the evidence that Mr.

Couch had not suffered a serious impairment and that he had ongoing and pre-existing medical history relevant to and consistent with his post accident treatment. [ 7 ] Mr. Couch initially sought general damages in the amount of $125,000.00 and special damages in the amount of $100,000.00.

His Statement of Claim alleged that he had suffered severe injuries to the neck, severe injuries to the head, severe injuries to the back, severe injuries to both shoulders, severe injuries to the ribs, headaches and dizziness, blurred vision, and a variety of other forms of pain and suffering, including fear of being in a motor vehicle accident, nightmares of the collision, depression and anxiety, impaired memory, and loss of amenities of life.

He also claimed loss of earnings of employment, loss of earning capacity, loss of housekeeping capacity, loss of opportunity, and other expenses related to medical and rehabilitation treatment. [ 8 ] In the end, Mr. Couch was awarded $3,000.00 for minor WAD 1 level injuries, $1,672.00 for travel to and from his chiropractic treatment, and $50.00 for painkillers to treat his injuries. The total damages awarded represent approximately 2% of the value initially claimed. [ 9 ] In the Costs Submission, counsel for Mr. Couch highlights various efforts to minimize costs during the proceedings.

Specifically, counsel notes that they are claiming costs for a single counsel when the Plaintiff was represented by two counsel at trial. Further, counsel contends that they minimized costs by entering relevant medical records as evidence without witness testimony, and by bypassing the Judicial Dispute Resolution Process (JDR) required under r 4.16(1) of the Alberta Rules of Court , Alta Reg 124/2010 [the “ Rules ”]. The JDR was bypassed because it “was highly unlikely the process would result in an agreement between the parties” given the nature of the claim and the involvement of a self-represented defendant.

Finally, counsel emphasizes that Mr. Olatiregun did not cooperate in the Plaintiff’s efforts to by-pass mediation and set trial, and therefore unnecessarily prolonged and complicated the process. [ 10 ] Given that this was a without notice application, Mr. Olatiregun did not make any submissions on costs. Analysis [ 11 ] A successful party is presumptively entitled to their costs: r 10.29(1).

In Alberta, the rule of thumb is that a successful party in litigation should have approximately 40-50% of their costs indemnified by the losing party: see McAllister v Calgary (City) , 2021 ABCA 25 at para 41 [ McAllister ] (and citations therein); Weatherford Canada Partnership v Artemis Kautschuk und Kunstoff-Technik GmbH , 2019 ABCA 92 [ Weatherford CA ]. [ 12 ] However, cost awards are subject to the Court’s general discretion under r 10.31, which notes that the Court can order a costs award of any amount the Court considers appropriate in the circumstances.

This discretion must be exercised in light of the Rules and the need to act judicially on the facts of the case: McAllister , citing British Columbia (Minister of Forests) v Okanagan Indian Band , 2003 SCC 71 . Considerations under r 10.33 help define reasonable and appropriate cost awards and guide judicial discretion in awarding costs: McAllister at para 23 . [ 13 ] Rule 10.33 reads as follows: 10.33

(1) In making a costs award, the Court may consider all or any of the following: (

a) the result of the action and the degree of success of each party; (

b) the amount claimed and the amount recovered; (

c) the importance of the issues; (

d) the complexity of the action; (

e) the apportionment of liability; (

f) the conduct of a party that tended to shorten the action; (

g) any other matter related to the question of reasonable and proper costs that the Court considers appropriate.

(2) In deciding whether to impose, deny or vary an amount in a costs award, the Court may consider all or any of the following: (

a) the conduct of a party that was unnecessary or that unnecessarily lengthened or delayed the action or any stage or step of the action; (

b) a party’s denial of or refusal to admit anything that should have been admitted; (

c) whether a party started separate actions for claims that should have been filed in one action or whether a party unnecessarily separated that party’s defence from that of another party;

(

d) whether any application, proceeding or step in an action was unnecessary, improper or a mistake; (

e) an irregularity in a commencement document, pleading, affidavit, notice, prescribed form or document; (

f) a contravention of or non-compliance with these rules or an order; (

g) whether a party has engaged in misconduct; (

h) any offer of settlement made, regardless of whether or not the offer of settlement complies with

Part 4, Division 5. [ 14 ] Each of these factors is addressed separately below. Considerations under 10.33(1) (

a) the result of the action and the degree of success of each party [ 15 ] Mr. Couch was successful in his action and received a small damages award for his minor injuries. I found Mr. Olatiregun liable for the motor vehicle accident, notwithstanding Mr. Couch’s abrupt stop in the left turning lane. (

b) the amount claimed and the amount recovered [ 16 ] In his Statement of Claim, Mr. Couch claimed $125,000.00 in general damages and $100,000.00 in special damages. At trial, I found that Mr. Couch’s claim for general damages was captured by the Minor Injury Regulation , and that $3,000.00 was sufficient to compensate him for pain, suffering, and loss of enjoyment of life. Special damages were limited to travel to and from his chiropractic clinic ($1,672.00) and the cost of painkillers ($50.00). The final damages award was less than $5,000.00, which represents just over 2% of the initial damages claim. (

c) the importance of the issues [ 17 ] In this case, the Court was tasked with assigning liability and assessing damages for a low-velocity motor vehicle accident that resulted in minor injuries. The issues were not novel and are unlikely to have far-reaching implications on future motor vehicle accidents. (

d) the complexity of the action [ 18 ] This was a relatively simple action that progressed in a routine manner. In total, the trial lasted two half-days out of the five days initially allotted. This amounted to 111 minutes and 35 seconds (1 hr 51 min 35 sec). (

e) the apportionment of liability [ 19 ] Apportionment of liability was not relevant in this trial. (

f) the conduct of a party that tended to shorten the action [ 20 ] Counsel for Mr. Couch entered relevant medical records as evidence without witness testimony and bypassed the JDR process required under r 4.16(1). These steps shortened the action. The fact that Mr. Olatiregun did not show up at trial also shortened the action. (

g) any other matter related to the question of reasonable and proper costs that the Court considers appropriate [ 21 ] The Court was not made aware of any formal or informal offers to settle this matter. The circumstances and ultimate value of damages indicate that a settlement could have been appropriate, which would have saved the Court significant time and resources. Considerations under 10.33(2) (

a) the conduct of a party that was unnecessary or that unnecessarily lengthened or delayed the action or any stage or step of the action [ 22 ] Counsel for Mr. Couch has suggested that Mr. Olatiregun did not cooperate in the Plaintiff’s efforts to bypass mediation and set trial, and therefore unnecessarily prolonged and complicated the process. The Order for Exemption from the mandatory JDR pronounced on May 19, 2021, notes that Eamon, J heard from counsel for the Plaintiff and from the Defendant before exempting the parties from the requirement to participate in a JDR under r 4.16(2) of the Rules .

I have not been provided with any evidence to support the suggestion that Mr. Olatiregun somehow interfered with the Mr. Couch’s efforts to obtain this order. The order does, however, note that “[c]osts shall be in the cause of this action.” [ 23 ] Outside of loose allegations that the Defendant somehow interfered with efforts to bypass a mandatory JDR process, the record demonstrates that Mr. Olatiregun, a self-represented defendant, conducted himself reasonably and to the best of his ability. [ 24 ] The Statement of Claim was filed on May 17, 2018. After some difficulty serving Mr.

Olatiregun personally, counsel for Mr.

Couch obtained an Order for Substitutional Service on December 13, 2018, and served Mr. Olatiregun’s residence shortly thereafter. Mr. Olatiregun was required to file a Statement of Defence within 20 days of service (r 3.31(3)) and did so on December 21, 2018. [ 25 ] The Plaintiff’s Affidavit of Records was then served on or about March 13, 2019. On August 14, 2019, counsel for Mr. Couch filed an Affidavit in Support of an Order declaring Mr. Olatiregun to be in civil contempt for not having served his Affidavit of Records upon Mr.

Couch within the limitation period outlined in rules 5.3, 6.3, 10.52(3)(a), and 10.53. Counsel also sought to set aside Mr. Olatiregun’s Statement of Defence. After some delay, Mr. Olatiregun filed his Affidavit of Records on November 7, 2019. [ 26 ] Counsel for Mr. Couch first attempted to question Mr. Olatiregun on February 27, 2020. Upon seeing that Mr. Olatiregun was unrepresented, counsel for Mr. Couch offered to suspend the questioning at no cost to Mr. Olatiregun until he found a lawyer. Mr. Olatiregun accepted this offer. Questioning was then conducted via zoom on October 22, 2020. Mr.

Olatiregun did not have a lawyer present for the second questioning but agreed to proceed anyway. During questioning, Mr. Olatiregun was asked to make a series of undertakings; he was asked to provide: his driver’s licence, details of prior eye examinations, photographs of the vehicles after the collision, and the name of the office where he purchased the tires on his car. In a case where liability was essentially not in issue, some of these requests appear oppressive. Nonetheless, Mr.

Olatiregun complied with the undertakings to the best of his ability and filed an Affidavit in Response on March 31, 2021. [ 27 ] It does not appear that Mr. Olatiregun unnecessarily lengthened or delayed the action in a way that warrants adverse consideration with respect to costs. (

b) a party’s denial of or refusal to admit anything that should have been admitted [ 28 ] Mr. Olatiregun did not deny or refuse to admit anything that should have been admitted. The only thing he denied was that Mr. Couch was hurt. Mr. Olatiregun did not deny or dispute that the accident had occurred. Mr. Olatiregun had no choice but to file a Statement of Defence to avoid being noted in default on the claims totalling $225,000.00. (

c) whether a party started separate actions for claims that should have been filed in one action or whether a party unnecessarily separated that party’s defence from that of another party [ 29 ] This factor is not applicable. (

d) whether any application, proceeding or step in an action was unnecessary, improper or a mistake [ 30 ] There were no unnecessary applications, proceedings, or steps taken in the action. (

e) an irregularity in a commencement document, pleading, affidavit, notice, prescribed form or document [ 31 ] This factor is not applicable. (

f) a contravention of or non-compliance with these rules or an order [ 32 ] This factor is not applicable. (

g) whether a party has engaged in misconduct [ 33 ] Neither party has engaged in misconduct and therefore this factor is not relevant. (

h) any offer of settlement made, regardless of whether or not the offer of settlement complies with

Part 4, Division 5 [ 34 ] There is no evidence on the record that a settlement offer was made. Additional Considerations [ 35 ] Although Mr. Couch was successful in his claim and undertook some conduct that tended to shorten the action (such as entering relevant medical records as evidence without witness testimony), there is a significant discrepancy between the amount he claimed and the amount he recovered. This discrepancy is somewhat accounted for by 75% cost recovery limits set in r 10.42(2)(a). [ 36 ] Rule 10.42(2)(

a) states that:

(2) Despite anything in this Division or

Schedule C, unless the Court otherwise orders, (

a) in the case of an action brought in the Court of King’s Bench for which the amount sued for or the amount of the judgment or order does not exceed the amount for which the Court of Justice has jurisdiction under

section 9.6 of the Court of Justice Act , the costs to and including judgment or order must be assessed, if at all , at not more than 75% of the amount specified in Column 1 of the tariff in Division 2 of

Schedule C; [emphasis added]

[ 37 ] The inclusion of the language “if at all” in r 10.42(2)(

a) suggests that the 75% cap on costs for pursuing an action in a less apt venue is a high-water mark rather than an absolute entitlement. In fact, on a strict reading of the rule, it would appear that an award of no costs would be fully within the Judge’s discretion. [ 38 ] The foundational rules of the Alberta Rules of Court note that when exercising its discretion to grant a remedy or impose a sanction, the Court will grant or impose a remedy or sanction proportional to the reasoning for granting or imposing it: r 1.2(4).

The purpose of the Rules is to “provide a means by which claims can be fairly and justly resolved in or by a court process in a timely and cost-effective way”: r 1.2(1).

The Court should apply the Rules in a way that facilitates the quickest means of resolving a claim at the least expense, encourages the parties to resolve the claim themselves, and provides an effective, efficient, and credible system of remedies and sanctions: R. 1.2(2) . [ 39 ] Cost awards attempt to balance the financial burden placed on unblameworthy parties who choose to pursue actions with the chilling effect that occurs when parties bringing or defending claims are saddled with all costs ( Weatherford CA ). [ 40 ] In McAllister , the Alberta Court of Appeal noted that although a reasonable level of indemnification of costs incurred is the primary purpose of costs awards, other considerations may come into play where appropriate.

Encouraging efficiency was provided as one example of an appropriate consideration where there is a specific opportunity to encourage it. As stated at paragraph 33 of McAllister : A “reasonable and proper costs” award involves a payment by the unsuccessful party to the successful party to indemnify the successful party for expenses incurred as a result of the conduct of the unsuccessful party.

The primary purpose of a costs award is to indemnify the successful party in respect of the expenses sustained either defending a claim that in the end proved unfounded (if the successful party was the defendant), or in pursuing a valid legal right (if the plaintiff prevailed) ( Okanagan Indian Band at para 21 ). The indemnification is not intended to be complete. Nevertheless, a reasonable level of indemnification of costs incurred is the primary purpose of costs awards. Other considerations may come into play, but only when appropriate.

For example, encouraging efficiency only comes into play where there is a specific opportunity to encourage it or where there has been a demonstrated inefficiency in the conduct of the litigation. [ 41 ] Counsel for Mr. Couch have claimed 75% of the maximum costs available under column 1 of

Schedule C. However, I find that a further adjustment to the cost award is required to account for the principles of efficiency and fairness that underlies the Rules . An adjustment is also warranted to account for the principle that cost awards should always be proportional to the interests involved in an action: Re Goldstick Estates , 2019 ABCA 508 at para 31 . [ 42 ] Mr. Couch and Mr. Olatiregun were involved in a minor fender-bender. Although Mr. Olatiregun was not available for questioning at trial, his statement of defence noted that “there was no physical damage to [Mr.

Couch’s] car and mine had a minor damage from the plastic grill.” The evidence presented at trial provided no indication that damages amounting to $225,000.00 were warranted. There was no reasonable basis for claiming such exorbitant damages and pursuing this action in the Court of King’s Bench when there were more efficient avenues in which this action could have been addressed. [ 43 ] Given the above, departing from the 40-50% costs rule in this case is warranted and aligns with the foundational rules of the Rules . Costs Award [ 44 ] In light of the forgoing, I award costs including disbursements to Mr.

Couch in the amount of $1,300. Heard on the 16 th day of January, 2023. Dated at the City of Calgary, Alberta this 6 th day of July, 2023. W.P. Sullivan J.C.K.B.A. Appearances: C.R. Suntjens

for the Plaintiff No One Appeared for the Self-Represented Litigant