KS v WILLOX, 2016 ABQB 654


9.13: Re-opening case
10.33: Court considerations in making costs award
SCHEDULE C: Tariff of Recoverable Fees

Case Summary

Following a Judgment at Trial, the Parties returned to speak to Costs and to finalize the terms of the Judgment Roll. Moreau J. considered the point at which the Plaintiff’s former Litigation Representative, JS, ceased to be liable for Costs. In 2010, JS removed herself as Litigation Representative, and a lawyer subsequently filled the role. JS had discontinued her own Claim against the Defendant in 2014. The Plaintiff argued that JS should not be liable for Costs after she made clear her intention to no longer act as the Plaintiff’s Litigation Representative. The Defendant argued that JS should be liable for Costs up until she discontinued her Claims against the Defendant, and that a multiplier of Column 5 of Schedule C was appropriate.

Justice Moreau held that JS would be liable for Costs until the point where she discontinued her own Claims against the Defendant. In making the determination of the amount of the Costs award, Moreau J. considered Rule 10.33, which provides the factors that the Court must consider when making a Costs award. In reviewing the factors set out in 10.33, Moreau J. noted that the Action was complex; it involved multiple issues regarding both liability and the quantum of damages; it involved multiple experts; and it took five weeks of Trial. Moreau J. also took into consideration that JS would experience some financial hardship in paying the Costs award. Her Ladyship, referring to prior leading authorities, held that Costs in Schedule C, Column 5 was appropriate with the application of a multiplier of 2 as against JS.

Moreau J. considered the quantum of damages as it related to a structured settlement and future cost of care in order to settle the formal terms of the Judgment. Moreau J. referred to Rule 9.13 which provides that, at any time before a Judgment or Order is entered, the Court may vary the Judgment or Order; or, if there is good reason to do so, the Court may hear more evidence and change or modify its Judgment or Order. Justice Moreau held that there was no reason to re-open the Trial to hear further evidence, but the parties were permitted to make further written submissions with respect to damages.

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