When determining whether the Plaintiff in a medical malpractice Action was entitled to a percentage of the Costs they reasonably incurred, Bercov J. held that the legal fees the Plaintiff incurred was reasonable considering the factors set out in Rule 10.2.

Bercov J. found that although the contingency fees the Plaintiff owed under the Contingency Fee Agreement (the “Agreement”) was significantly higher than Schedule C Costs, the circumstances justified the higher fees. Medical malpractice actions were difficult, requiring highly skilled counsel. Counsel willing to advance these Actions under Contingency Fee Agreements face significant risk and must carry significant disbursements to the end of Trial.

Having considered the factors set out in Rule 10.33, specifically, the expertise required to litigate this Action, the risks counsel took on, the need to carry significant disbursements, and the Defendant’s refusal to consider any offer except a discontinuance without Costs, Bercov J. held that Schedule C Costs were not reasonable and proper Costs and awarded 50% of the fees the Plaintiff owed under the Agreement.

Bercov J. accepted the Defendant’s argument that Rule 10.31(2)(c) prohibited the Plaintiff from recovering Costs associated with a Dispute Resolution Meeting the parties had (the “Meeting”). Bercov J. continued by commenting that Rule 10.31(2) provides that reasonable and proper costs “do not include costs related to a dispute resolution process”. Alberta Courts have consistently held that such Costs are not recoverable for dispute resolution unless a party engages in serious misconduct during the dispute resolution process, which was absent here.

When determining whether the Plaintiff could recover the videographer costs they incurred to record the Defence IME, Bercov J. held that Rule 5.43 did not preclude the Plaintiff from seeking reimbursement of videographer costs at the end of a Trial. Under Rule 5.43, the party who applies for an IME pays upfront the costs of the Plaintiff to attend. The party seeking the IME does not have to pay upfront the cost of videotaping or having the attendance of a nominated health care professional. Bercov J. noted that in Dirk v Toews, 2020 ABQB 16, the cost of a nominee to attend with the Plaintiff at an IME was found to be a recoverable disbursement. Seeing no reason to treat the cost of a videographer differently than the cost of a nominee, Bercov J. concluded that this disbursement was reasonable and recoverable.