Executive Summary: Key Legal and Evidentiary Issues

• Entitlement to further prejudgment interest after a damages agreement that included interest up to November 11, 2021, given a nearly three-year adjournment before judgment.

• Determination of which party was responsible for the adjournment and whether this affects the plaintiffs’ entitlement to additional interest.

• Interpretation of the damages agreement’s silence on post-November 11, 2021 interest under the Judgment Interest Act.

• Whether the plaintiffs can claim Schedule C costs with a multiplier or based on exceeded settlement offers, despite the agreement’s terms.

• Assessment of whether the plaintiffs’ disbursement for one expert was excessive.

• Application of statutory and contractual principles to the allocation of costs, interest, and disbursements following the delayed medical malpractice trial.

Background and facts of the case

Julie Ewashko and Aidan Ewashko (an infant, represented by Julie Ewashko) brought a medical malpractice action against Wouter Hugo, Etienne Groenewald, and Covenant Health (owning and operating St. Mary’s Hospital), alleging catastrophic and permanent injuries to Aidan at birth in 2013 due to alleged medical negligence. The background of the litigation is outlined in 2025 ABKB 295, where the defendant physicians were found jointly liable for the damages suffered by both plaintiffs.

Prior to the liability trial, the parties agreed on the quantification of damages, with the material terms as follows: if one or more of the defendant physicians were found liable, a global amount of damages, including prejudgment interest and court costs and disbursements to November 11, 2021, would be $10 million. The agreement was silent on interest after November 11, 2021. Schedule C costs and table disbursements incurred by the plaintiffs after November 11, 2021, were to be addressed at the conclusion of the trial.

The trial was adjourned for almost three years due to a dispute over the qualifications of one of the plaintiffs’ experts, Dr. Guilfoyle. The defendants provided only two days’ notice of their objections to Dr. Guilfoyle’s qualifications, which the court found to be inadequate notice. This late objection led to the plaintiffs’ request for an adjournment to secure alternative expert evidence, which was granted. The court found that the defendants’ late objection was the operative cause of the adjournment and resulting delay.

Key legal issues and analysis

The primary legal issue was whether the plaintiffs were entitled to further prejudgment interest from November 11, 2021, to the date of judgment (May 13, 2025). The plaintiffs argued that the silence in the agreement on interest after November 11, 2021, meant that further prejudgment interest under the Judgment Interest Act was available. The defendants argued that the express reference to interest “to November 11, 2021” implied that no interest would be payable after that date.

Justice Lema reviewed Alberta case law and found that, where an agreement is silent on prejudgment interest after a specified date, the Judgment Interest Act applies unless the parties clearly agree otherwise. The court determined that the damages agreement did not cap interest at November 11, 2021, but instead left the issue open, entitling the plaintiffs to further interest under the Act.

The court also considered whether the plaintiffs should be denied or have reduced interest due to the delay. Justice Lema found that the defendants’ late objection to Dr. Guilfoyle was the effective cause of the delay, and therefore, the plaintiffs should not be denied interest for the delay period.

Discussion of policy terms and clauses

The damages agreement specified a global sum of $10 million, including prejudgment interest and court costs and disbursements to November 11, 2021. The agreement was silent on interest after that date. The court interpreted this silence, in light of statutory and case law, as not precluding further interest. The agreement also stipulated that Schedule C costs would apply for steps taken after November 11, 2021, with no mention of multipliers or increased costs for exceeded settlement offers.

Outcome and orders

Justice Lema awarded the plaintiffs $1,013,954 in prejudgment interest on $9,450,000 (the damages sum less estimated costs and interest already included up to November 11, 2021) for the period from November 11, 2021, to May 13, 2025, calculated at the rates prescribed by regulation. The plaintiffs were also awarded Schedule C (column 5) costs and their claimed disbursements for steps taken after November 11, 2021, but were denied any cost multipliers or increases based on settlement offers. The court found the challenged expert disbursement was not excessive. No “thrown-away” costs for the first trial were awarded due to lack of detailed submissions. Each party was ordered to bear their own costs for the interest-and-costs application itself.

For these reasons, the plaintiffs, Julie Ewashko and Aidan Ewashko, were entitled to the noted $1,013,954 in prejudgment interest, Schedule C (column 5) costs for the steps taken after November 11, 2021, and disbursements as claimed. No exact total for costs and disbursements was specified beyond the interest amount.