GEORGE PORTAS v. HORIZON TRANSPORT LTD., 2003 ABQB 287

Portas v. Tristar Transport Ltd., 2003 ABQB 287 Date: 2003 03 28 Action No. 9703 23469 IN THE COURT OF QUEEN'S BENCH OF ALBERTA JUDICIAL DISTRICT OF EDMONTON BETWEEN: GEORGE PORTAS and HORIZON TRANSPORT LTD. Plaintiffs (Defendants by Counterclaim) - and - TRISTAR TRANSPORT LTD. Defendant (Plaintiff by Counterclaim) - and - MIKE KAZIUK JO-ANN TRUCKING LTD., AND REGAN SCARFE Defendants - and - ROBERT J. FOWLER Third Party _______________________________________________________ MEMORANDUM OF JUDGMENT of the HONOURABLE MR. JUSTICE D. W. PERRAS _______________________________________________________

APPEARANCES: R. J. Hunka for the Plaintiff I. M.

Cameron for the Defendant [ 1 ] Subsequent to the judgment being rendered, the plaintiff by notice raised several issues which were addressed on March 13, 2003 by oral submissions to the court followed by written submissions. [ 2 ] The issues raised relate to the quantum of damages awarded. [ 3 ] The original judgment did not take into account the subrogated claim of the plaintiff ’ s insurers. [ 4 ] At trial the plaintiff was content to claim $90,000.00 for the tractor unit (primarily based on two appraisals, each of which offered a range for the value of the unit).

However, there was some salvage value recovered minus the costs of recovering the salvage value. Hence, taking into consideration the subrogated aspect of the claim I find the damages to be as follows: 1. Loss of property (i.e. tractor unit) $90,000.00 Less salvage $37,450.00 (Minus costs relating to recovery of salvage) (

a) GST $2,739.17 (

b) Recovery costs $4,138.75 $ 6,877.92 $30,572.08 TOTAL: $59,427.92 2. Loss of use (37 days x 161.84 per day $ 5,988.09 TOTAL DAMAGES: $65,416.01 [ 5 ] The plaintiff ’ s damages are a total of $65,416.01. [ 6 ] The plaintiff will have interest pursuant to the terms of the Judgment Interest Act .

[ 7 ] The second issue raised was that of amending the Statement of Claim. The plaintiff seeks to amend the Statement of Claim to have the damages sought correspond with the amounts awarded for property damage. [ 8 ] In the overall scheme the amendment, in my view, is not necessary. The motivation for such likely arises as a result of an offer to settle which apparently has been bettered as a result of the trial. The amendment sought would not, in my view, have any bearing on the application of Rule 174. [ 9 ] The third issue is that of costs. As a result of the judgment, costs were awarded at 1 1/2 times the appropriate

schedule of Column C. The issue now is what award is applicable as a result of a judgment that beats the formal offer made in October of 2002. The defendants argue for an exception for “ special reasons ” ; however, in my view there are no special reasons to justify an exception to the Rule. The offer, in my view, was clear and directed at the defendant as it was served on counsel for the defendant. [ 10 ] In Jones v. Trans America Life 1996 ABCA 165 (CanLII) , 1996, 184 A.R. 120 , the Court of Appeal articulated the basic reason for the rules, i.e., to prevent further litigation.

In other words the rules are there to promote settlements and if an offer is not taken up there is an attendant risk. Hence, clearly the plaintiff in this case is entitled to double costs from the date of service of the formal offer to settle. [ 11 ] As a result of these additional reasons counsel may, within 30 days, apply to the court for directions to settle any issue that might arise from the supplemental reasons. HEARD on the 13 th day of March, 2003 DATED at Edmonton, Alberta this 28 th day of March, 2003. __________________________ J.C.Q.B.A.