Defendant Ordered to Pay 25% Greater Trial Costs for "Reprihensible" Failure to Attend Examination for Discovery
December 31st, 2012
Parties to a BC Supreme Court lawsuit can be forced to attend an examination for discovery set up by opposing litigants. Failure to attend can have a variety of consequences. Demonstrating one such consequence in action, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, punishing a non-attending part with increased costs.
In the recent case (Stanikzai v. Bola) the Defendant was found 75% at fault for a motor vehicle collision and was ordered to pay damages of just over $189,000. Prior to trial the Defendant failed to appear at an examination for discovery. Mr. Justice Smith found this behaviour was “reprehensible” and ordered that the defendant pay post trial costs at a level greater than they otherwise would have been. In reaching this decision the Court provided the following reasons:
 Parties to civil litigation are required by R. 7-2(1) of the Supreme Court Civil Rules, to make themselves available for examinations for discovery. It is not something a litigant can choose to do or not do on the basis of her own convenience. If Ms. Bola was unable to attend the examination on the day it was set, her obligation was to notify her counsel and discuss alternate dates. Instead, she simply failed to show up.
 I also find it difficult to believe that she had no knowledge of the false information her husband was apparently providing to defence counsel when a second discovery was requested. Ms. Bola showed a complete and unacceptable disregard for her duties under the law. I stress this was not the fault of defence counsel, who attempted to get her cooperation…
 I find that the defendant’s refusal to appear at discovery meets the definition of “reprehensible conduct” and I would not hesitate to award special costs if I thought that conduct had affected the outcome of the trial. But, in the specific circumstances of this case, I find that there is another, more proportionate rebuke available.
 Under normal circumstances the plaintiff, having been found 25 per cent responsible for the accident, would recover only 75 per cent of his costs. This arises from s. 3(1) of the Negligence Act, RSBC 1996, c 333:
3 (1) Unless the court otherwise directs, the liability for costs of the parties to every action is in the same proportion as their respective liability to make good the damage or loss.
 Although payment of costs in proportion to the degree of liability is the default rule, the court has discretion to depart from it. That departure must be for reasons connected with the case, with the principle consideration being whether application of the usual rule will result in an injustice: Moses v Kim, 2009 BCCA 82 at para 70.
 In these circumstances, I find that the interest of justice can best be served by depriving the defendants of the reduction in costs that they would otherwise benefit from and I award the plaintiff the full costs of this action.