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Monday Morning Case Bites for June 15, 2020

Last Week’s Court Rulings from the Alberta Court of Queen’s Bench, Court of Appeal and SCC.

Edited by Amanda Kostek & Steven Graham

Ewashko v Hugo, 2020 ABCA 228
Expert Witnesses

L Egoroff Transport Ltd v Green Leaf Fuel Distributors Inc, 2020 ABQB 360
Limitation Period | Application to Strike

Dirk v Toews, 2020 ABQB 362
Costs Award | Second Counsel

Ewashko v Hugo, 2020 ABCA 228

At issue was whether the Plaintiff could refuse to attend an IME on the basis that a separate defendant had already obtained an IME from the same speciality. At the original hearing the Chambers Judge directed that Defendants were not required to share an expert:

[5]               In his oral reasons for decision the chambers judge, after expressly referencing the discretion given to him by the rule, stated that different defendants do not have to agree to rely on the same expert witnesses, that plaintiffs should not be dictating to the defendants who they can retain as experts and if only one defence expert report were allowed, it would become a race between defendants as to who can get an examination first, which is a result that should be avoided. He further ordered that the hospital’s expert be permitted to conduct an assessment of Aiden in the same circumstances as those done by the other two occupational therapists, although there would be no physical examination of him. Ms. Ewashko was also ordered to facilitate observations by that expert in his school environment.

On Appeal the Court commented as follows:

[15]           There is no authority which suggests that where one defendant has not made a claim over against another defendant, that they should be considered to be the same party for the purpose of rule 5.41(4). Even when a single party seeks permission to call more than one expert at trial in a given area, that request will not be rejected where the applicant establishes relevance, necessity, absence of an exclusionary rule and a properly qualified expert; see Smith v Obuck, 2018 ABQB 849.

[16]           Simply because Notices of Claims for Contribution and Indemnity or Third Party Claims have not been filed by the respondents does not mean their interests are aligned for all purposes, for all time. While they may have a “common indivisible interest” to the extent that a joint damages award may be made against them after trial, that is not synonymous with identical positions in law, in fact, in tactics or in strategy. Each clearly has a discrete interest in attempting to establish that some or all of the damages sustained, including future care costs, should be borne by the other defendants.

[17]           Each defence counsel may well instruct their experts differently. They will each ask their expert to focus on certain things, to agree or disagree with certain findings of the appellants’ expert and to include a rebuttal with their initial report or separately. Further, while both these experts may well be qualified to give opinion evidence on future care costs, that is no assurance that each will come to identical opinions. As noted in Kubica v Hagans, 2007 ABQB 741 [Kubica] at paras 12-13, an expert report prepared for one defendant may express an opinion which is inconsistent or unfavourable to the position taken by the other defendant.

Further, Defendants need not issue cross claims against each other to be adverse in interest in terms of experts. Requiring Defendants to share experts would lead to an unfair result:

[21]           Although these defendants may not have filed pleadings advancing claims over against one another, they are adverse in interest to the extent that any degree of liability found by one defendant reduces the potential degree of liability available to be found against the other. In that sense, they are parties who do not have a common interest even though they may each be found liable in part for causing a single event. They do not have a common indivisible interest in the resulting damages. A common interest in keeping global damages as low as possible does not account for the defendant’s very different interests in the issue of apportionment of those damages between them.

[22]           If the hospital was required to rely on the physicians’ expert evidence it would not be in a position to prepare for trial by direct questioning of that expert to expand on statements made in her report or to raise other areas of concern, absent consent from the physicians’ counsel. While the chambers judge indicated that consent might be forthcoming, he also observed that the physicians’ counsel is not required to consent.

[23]           Requiring defendants to share an expert retained by one of them raises the risk that a defendant will be unable to prove its case if the other(s) settle with the plaintiff on a basis that precludes the remaining defendant from effectively relying on the expert’s evidence at trial. That defendant would have to rely on a report prepared by an expert it did not instruct, and with whom it may have no relationship, retainer or pre-trial preparation opportunity. That report may have been drafted in a manner suggesting liability on the part of the remaining defendant rendering it strategically unusable by that party, and leaving it without expert evidence to reply to the plaintiff’s expert evidence on the issue. Expert evidence prepared on the request of the plaintiff, addressing issues identified by the plaintiff and reflecting the theory of the plaintiff’s case would be available at trial, without the remaining defendant having expert evidence obtained in the same manner to offer in reply.

The Appeal was dismissed.

L Egoroff Transport Ltd v Green Leaf Fuel Distributors Inc, 2020 ABQB 360

This matter arose out of a collision between a fuel tanker and logging truck on November 22, 2014. The Statement of Claim was filed outside the 2 year limitation period on November 29, 2016. A counter claim was filed August 23, 2017. Both parties brought applications to strike each other’s claims on the basis of the limitation period.

After a thorough review of the law and Limitations Act, the Court directed that Section 6 of the Limitations Act, which allows claims to be added after the Limitation Period, cannot be relied on to add a claim already statute barred when the action was commenced:

[82]           Section 6 of the Limitations Act cannot be used to add claims which were statute-barred at the commencement of the proceeding. At para 42, the Court in W.A.R. commented that if so: “Someone could revive a long-dead cause of action by amending a fairly recent lawsuit to add the dead claim.” and concluding at para 45: “The original statement of claim must have been issued before the proposed additional claims died.”

This applies equally to counter claims:

[91]           There is sufficient authority in Marlborough Ford Sales and elsewhere as set out above, to conclude that s 6 of the Limitations Act applies to a counterclaim as a claim added to a proceeding previously commenced by way of statement of claim.

[92]           Accordingly, the plaintiff/defendant by counterclaim is not entitled to immunity from liability in respect of the counterclaim if the requirements of s 6(2) are satisfied such that the counterclaim is related to the conduct, transaction or events described in the original pleading in the proceeding.

[93]           The conclusion by Yungwirth, J that Murphy’s counterclaim was a stand-alone claim and her inquiry into whether it was statute-barred was appropriate. Rule 3.58 provides that a counterclaim is an independent action. As such, claims made by way of counterclaim are subject to the same limitation periods set out in s 3 of the Limitations Act. The same principle of discoverability applies. Section 6 of the Limitations Act cannot be used to add claims by way of a counterclaim which were statute-barred at the commencement of the proceeding.

[94]           Master Hanebury summarized these concepts succinctly in dismissing Shell Canada’s application to file a counterclaim as it was statute-barred in ConocoPhillips Canada Resources Corp v Shell Canada Limited, 2019 ABQB 727 [“ConocoPhillips”] at paras 244 and 254:

[244]     The law in relation to the extension of time to file a counterclaim is not in dispute. A counterclaim is treated as an amendment to a pleading and generally an amendment may be allowed, no matter how careless or late unless, among other reasons, it is hopeless or attempts to add a new cause of action after a limitation period has expired. The Court has a broad discretion to allow an amendment: Dow Chemical Canada Inc. v. Nova Chemicals Corp., 2010 ABQB 524, para’s 20, 21; Attila Dogan Construction & Installations Co v. AMEC Americas Ltd., 2014 ABCA 74, para. 17.

[254]     Section 6 of the Act must also be considered. It provides that notwithstanding the expiration of the relevant limitation period, when a claim is added to a proceeding previously commenced, the plaintiff is not entitled to immunity if the claim is related to the conduct, transaction or events described in the original pleading. However, the case law has held that if the added claim was already barred by the passage of time at the time the original claim was filed, it cannot be revived by s. 6: R. (W) v. Alberta (Attorney General), 2006 ABCA 219, para’s 29 – 49; Royal Well Servicing Ltd. v. Murphy Oil Company Ltd., 2018 ABQB 514, para’s 59 – 63.

As a result, the claim and counter claim for property damage, and business interruption costs were statute barred. However, the claim for remediation costs were not, because environmental damage including ground water contamination resulting from the collision was not discovered until the Spring of 2015.

Dirk v Toews, 2020 ABQB 362

In the context of settling disputed costs, the Plaintiff sought, among other costs items, to recover for second counsel. The Court declined on the basis that the issues were not sufficiently complex to warrant a second counsel fee:

[13]           The Plaintiff also claims second counsel fees on several appearances required for settling and arguing the judgement role as well as attending to hear rulings related to same. The Plaintiff also claims second counsel for attendance to argue costs issues. As set out in Seidel v. Kerr, 2004 ABCA 157 at para 11:

A number of factors have been recognized as relevant to the allowance of a fee for second counsel, including the general importance of the issue or issues to the parties or to others, the value of the case, the complexity and scope of the issues, the size of the trial record, the manner in which opposing counsel conducts the case and whether second counsel addressed the Court.

[14]           Issues arising out of the deductibility of the benefits, the settling of the Judgment Role, as well as costs, were not of such complexity, length or value that second counsel was required. Second counsel fee will not be allowed on any of these appearances.