MEEHAN v HOLT, 2011 ABQB 110


5.40: Expert’s attendance at trial
8.15: Notice of persons not intended to be called as witnesses
8.16: Number of experts
10.33: Court considerations in making costs award
15.2: New rules apply to existing proceedings

Case Summary

Following Trial, the Plaintiff sought Costs, disbursements and pre-judgment interest from the Defendants. The Plaintiff and Defendants were unable to agree on Costs and therefore re-attended before Sullivan J. for direction.

Sullivan J. held that, in accordance with Rule 15.2(1), unless an enactment or other Rule provides otherwise, the new Rules apply to every existing proceeding. Further, where the Rules impose a new test, provide new criteria or an additional ground, the Rules apply in respect of Applications not heard prior to the coming into force of the Rules. Sullivan J. held that, if there was a difference between the old Rules and the new Rules, Rule 15.6 allowed the Court to substitute the old Rules for the new Rules, particularly where it would be in the interests of fairness, timeliness and cost effectiveness to decide under the old Rules. In the circumstances before the Court, no difficulty or injustice arose as between the old Rules and the new Rules, and the Court considered the matter under both sets of Rules. This approach differed from the approach in Broers v Real Estate Council of Alberta, 2010 ABQB 774, where only the old Rules were considered.

Sullivan J. found that both the old and new Rules use the wording “reasonable and proper” to define a costs award. With respect to disbursements, Sullivan J. held that both the old and new Rules give the Court discretion to include in “costs” the charges of experts who testify at a Trial, as well as those who assist counsel in preparation. Sullivan J. noted that new Rule 8.16(1) provides that “[u]nless the Court otherwise permits, no more than one expert is permitted to give opinion evidence on any one subject on behalf of a party”. However, Sullivan J. did not impose this test on the parties as the matter was argued at Trial under the old Rules. Taking into consideration both the new Rules and the old Rules, Sullivan J. disallowed some of the disbursements claimed by the Plaintiff for Experts’ Reports.

Sullivan J. also addressed the issue of “Notices to Admit and Not to Call”, finding that both the old and the new Rules give the Court discretion to penalize Parties who refused to admit facts or objected to a notice not to call an expert. The new Rules on this issue are Rules 10.33(2), 5.40(3) and 8.15(5). The Expert’s Report in question included evidence that was contrary to other evidence and it was reasonable for the Defendants to refuse to admit the report. Under the circumstances, Sullivan J. refused to penalize the Defendants for not admitting the report.

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