BARBE v EVANS, 2021 ABQB 796


1.2: Purpose and intention of these rules
4.29: Costs consequences of formal offer to settle
5.38: Continuing obligation on expert
10.31: Court-ordered costs award
10.33: Court considerations in making costs award

Case Summary

This was a Costs decision arising from a Judgment wherein a Defendant doctor was found liable while the Plaintiff’s suit was dismissed as against the other Defendants: the hospital and Alberta Health Services (the “Hospital Defendants”). The parties agreed the Plaintiff was entitled to Costs but were unable to agree on three issues: 1) who was responsible for paying the Hospital Defendants’ Costs; 2) what amount of Costs the Hospital Defendants were entitled to recover; and 3) whether the Plaintiff was entitled to double Costs.

The Court noted that the general Costs Rules are designed to foster three fundamental purposes: 1) to partially indemnify successful litigants; 2) to encourage settlement; and 3) to discourage and sanction inappropriate behaviour.

Prior to Trial, the Hospital Defendants had served a Formal Offer to Settle and were prepared to waive their entitlement to Costs. The Plaintiff did not accept. The Court noted that there is an overriding public interest in favour of settlement and that this policy is entrenched in Rule 4.29. The Court determined that, because of the Plaintiff’s decision to not release the Hospital Defendants prior to Trial, and to not consent to the Hospital Defendants’ non-suit Application, the Plaintiff should bear the Costs of the Hospital Defendants.

The Plaintiff argued that the Hospital Defendants should not be entitled to recover their portion of the cost of retaining experts, a fee which was split with the Defendant doctor. The Court, however, found that the cost was properly incurred and, in fact, noted that the choice of co-Defendants to share in the cost of experts should be encouraged by the Court in light of Rule 1.2. “To penalize a litigant for conducting themselves in a timely and cost-effective way, runs contrary to Rule 1.2.”

Pursuant to Rule 10.31, the Court has considerable discretion in awarding Costs and the Court considered Rule 10.33 which lays out the factors to be considered in making a Costs Award. The Court found that the amounts set out in the Hospital Defendants’ Bill of Costs were reasonable and, thus, the Hospital Defendants were entitled to be reimbursed for the full amounts claimed.

The Plaintiff also argued that the doctor should pay double Costs, in part because he did not advise the other parties in writing that his expert had changed his opinion and, therefore, did not comply with Rule 5.38. In the circumstances, the Court was not convinced the doctor had contravened Rule 5.38. As such, there was no basis to award enhanced or double Costs.

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