PETZ v DUGUAY, 2018 ABCA 402


4.29: Costs consequences of formal offer to settle
5.40: Expert’s attendance at trial

Case Summary

The Plaintiff appealed the Trial Judge’s award of damages for injuries sustained in a motor vehicle accident. On the merits, the Plaintiff challenged the Trial Judge’s findings of fact regarding causation of the Plaintiff’s subjective complaints. Justices McDonald and Crighton found that the Trial Judge’s findings of fact were reasonable and declined to interfere. Justice Greckol would have allowed the Appeal on the merits and would have ordered a new damages assessment. The Plaintiff also appealed the Trial Judge’s Costs award. The Defendant, pursuant to Rule 4.29(2), had been granted Costs for all steps taken following the Defendant’s delivery of the first of two formal offers, both more favourable to the Plaintiff than the ultimate Judgment. The Plaintiff argued that the two formal offers had not been properly served by the Defendant.

The Majority acknowledged that the Rules contemplate specific methods for service, but that in the context of formal offers, “the court is ultimately concerned with whether or not it is satisfied that the appellant received one or both of the pre-trial offers.” In this case, it was clear on the record that the Plaintiff, either directly or through counsel, received both of the Defendant’s formal offers. As such, the Defendant was entitled to Costs for all steps taken in the Action after the service of the first formal offer.

Notwithstanding the Defendant’s award of Costs for steps taken following the Plaintiff’s receipt of the first formal offer, which of course pre-dated Trial, the Plaintiff argued that she was entitled to the Costs of her experts’ attendances at Trial pursuant to Rule 5.40(3). That Rule entitles a party to the Costs of an expert’s attendance when the opposing party is served with a notice of intention to enter the expert’s report as evidence without calling the expert as a witness, and the opposing party nonetheless requests that expert’s attendance. This was the case before the Court, as the Plaintiff had served such Notices, and the Defendant requested attendance of multiple witnesses. However, given Rule 5.40’s limited scope and Rule 4.29’s breadth, the Majority agreed with the Trial Judge’s subordination of Rule 5.40 to Rule 4.29 as a permissible exercise of discretion in keeping with the use of Costs as a disincentive to litigation.

Justice Greckol, in dissent, did not address the Plaintiff’s appeal of the Costs award, as Her Ladyship would have directed that Costs be addressed upon re-assessment of damages.

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