MARC WOLF PLAINTIFF - v. -, 1999 ABQB 452

Wolf v. Shaw , 1999 ABQB 452 Date: 19990604 Action No. 9601-13347 IN THE COURT OF QUEEN'S BENCH OF ALBERTA JUDICIAL DISTRICT OF CALGARY BETWEEN: MARC WOLF PLAINTIFF - and - SYLVIA SHAW and RAYMOND SHAW DEFENDANTS _______________________________________________________ REASONS FOR JUDGMENT of the HONOURABLE MADAM JUSTICE C. A. KENT _______________________________________________________ [ 1 ] The trial of this action was heard before a jury.

Liability for the motor vehicle accident having been admitted by the defendants, the issues before the jury were whether or not the plaintiff suffered damage and if so the quantum of those damages. The jury found that the plaintiff suffered no damages. Counsel for the defendants has applied for costs and several issues have been raised. [ 2 ] Before dealing with each of the issues it is helpful to understand some of the background with respect to costs. The trial lasted 3 days.

There were 2 witnesses for the plaintiff, himself and his physician and 2 witnesses for the defendants, the defendant, Raymond Shaw and an expert who did an independent medical examination of the plaintiff. On July 25, 1997, the defendants served an offer of judgment in the sum of $2,000. After the required 45 days, the offer was withdrawn. On January 15, 1999, the plaintiffs served an offer of judgment for $12,000. The defendants had applied for the jury trial.

Issue 1 - Appropriate Column [ 3 ] The Statement of Claim claimed general damages in the sum of $100,000. That places the action in Column 2 and the defendants say that the costs should fall in Column 2. The plaintiff argues that the defendants knew all along that this was not a $100,000 law suit but really a law suit that would never exceed $50,000. He says that the offers both by plaintiff and defendants reflect the real magnitude of the case.

Rule 605(5) provides that: "the amount involved shall be determined as against the plaintiff by the amount claimed...." The defendants' argue that I then ought to place this within Column 2. [ 4 ] Keeping in mind the real issues in the trial, in my view it is not unrealistic for the defendants to have expected early on that this was not a law suit that would exceed $50,000. Accordingly, notwithstanding Rule 605(5), Column 1 is the appropriate Column. Issue 2 - The Defendants' Entitlement to Double Costs pursuant to Rule 174 [ 5 ] The defendants say that they are entitled to double costs under Rule 174(1.1).

An amendment to the Rules which took effect in September 1998 provides that where the action is dismissed entirely and the defendant has made an offer, the defendant is entitled to double costs. Rule 601.1 makes the new costs

Schedule applicable to services performed before and after September 1, 1998. The defendants say that they are entitled to double costs for any steps taken after the formal offer was made. Defence counsel points out that prior to the new Rule 174(1.1), some courts in Alberta were awarding double costs to a successful defendant (see North American System Shops v. King (1989) 1989 CanLII 3429 (AB KB) , 99 A.R. 138 , Martin v. McCoy [1993] A.J. No. 405 (

c) a.). Defendants' counsel acknowledges that there were cases where courts rejected the principal that double costs could be awarded to defendants since it was not specifically provided for in the Rules ( see Seal v. Ketza (1993) 1993 CanLII 7127 (AB KB) , 12 Alta L.R. (3d) 41 ). [ 6 ] The plaintiff argues that the retroactive nature of the new costs rules put the plaintiff in an impossible situation. The offer made by the defendants was made and withdrawn prior to the 1998 amendments to the costs rules.

Therefore, in refusing to accept the defendants' offer, the plaintiff could not have anticipated the effect of the new rule. It would be unjust to apply Rule 174(1.1) at all and certainly not for any steps taken prior to September 1, 1998. [ 7 ] In my view, the law was uncertain before September 1, 1998 in terms of what costs a defendant might be awarded. There was however a risk that they would receive double costs. Accordingly, it is not unfair to award costs in recognition of the defendants having served an offer which was not beaten by the plaintiff.

Accordingly, the costs in Column 1 generally will be doubled subject to some specific items which I deal with. Issue 3 - Pre-trial Steps [ 8 ] The plaintiff argues that I ought not to allow the entire amount for the Affidavit of Documents because in this case the defendants only produced 3 or 4 documents and the plaintiff only had a few. Using Column 1, the amount ordered would be $500, doubled to $1,000.

In my view given the small number of documents discovered, this amount should be set at $500. [ 9 ] The plaintiff argues that trial preparation ought not to be awarded in the full amount because there were only two witnesses for each side and two witnesses for which cross-examination had to be prepared. Under Column 1, the amount would be $2,000 doubled to $4,000.

In my view given the complexity of the issues and the preparation required an appropriate amount is $3,000. [ 10 ] There are a number of issues dealing with costs for specific applications which are dealt with as follows: The application on January 21, 1998 is not allowed. The case management meeting on October 13, 1998 is allowed, the application for an extension of time to pay jury costs is allowed, and the costs of the adjournment application are not allowed. Issue 4 - Jury Costs

[ 11 ] The plaintiff argues that he should not have to pay for the jury costs. The jury costs were $4,350. $1,500 of that was essentially a thrown-away cost because the plaintiff applied for and received an adjournment. The plaintiff says that he ought not have to pay for a jury trial when he did not apply for the jury. He says that in a case where a plaintiff has a very simple action, he is at risk of a jury trial being ordered because jury trials will not be ordered in complex or long trials.

Therefore, plaintiffs with simple trials are potentially penalized because of the risk of having to pay for the jury costs. [ 12 ] The defendants argue that they had the right to proceed by way of trial by jury. They were successful and therefore the plaintiff ought to bear the burden of jury costs. They cite the case of Wagner v. Parker [1998] B.C.J. No. 172 (B.C.S.C.) , where this precise issue was decided. The court found that the choice of trial by jury ought not to be a consideration so as to deny the defendants their costs. [ 13 ] The defendants applied successfully to have a jury trial.

Being successful at trial, they ought to be entitled to their costs of the jury. Miscellaneous Issues [ 14 ] The costs of Keith and Associates are not allowed. All of the travel costs for Mr. Shaw's attendance are allowed since as a defendant he had the right to attend the entire trial. The taxing officer will deal with the balance of the disbursements in accordance with usual practice. DATED at Calgary, Alberta this 4th day of June , 1999. ___________________________________ J.C.Q.B.A. APPEARANCES: STEPHEN G. JENUTH Counsel for the Plaintiff HEIDI F. SCHUBERT Counsel for the Defendants