ICBC Law

BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Posts Tagged ‘Rule 15-1(15)’

Two Sets of Costs Approrpriate When Two Actions Are Combined for Trial

September 3rd, 2014

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing what costs are payable when two actions, set for trial at the same time, settle prior to trial.

In today’s case (Wang v. Dhaliwal) the Plaintiff was involved in two collisions and filed separate lawsuits both of which were set to be heard at the same time.  The cases settled for trial for an agreed sum plus costs.  The Plaintiff argued that two sets of costs were warranted while the Defendant suggested a single set of costs was appropriate given ‘the efficiencies achieved by having the cases joined“.  In agreeing that two sets of costs were appropriate District Registrar Nielsen provided the following reasons:

21]         Although the two actions were ordered to be tried together, by consent, they involved different defendants and the issues were not identical: liability had been denied in the December 15, 2010 action and an allegation of contributory negligence had been raised by the defendant in the June 14, 2011 action. Further, the defendants required two examinations for discovery of the plaintiff in the two separate actions and the plaintiff had to conduct an examination for discovery of each defendant in the two actions.

[22]         The only commonality in the two actions was the fact that they involved injuries to the same plaintiff. In the circumstances, it was appropriate to bring two separate legal actions involving the different defendants and circumstances. It was equally appropriate to eventually join the cases for the purposes of trial once it became apparent this approach was workable and efficiencies would be achieved…

[27]         There will be circumstances where two sets of Civil Rule 15-1 costs will not be appropriate. In the presence case, the defendants have had the benefit of the streamlined process of Civil Rule 15-1 and the benefit of the two actions having been combined for the purpose of being heard together. The defendants have also had the further benefit of two separate legal actions having been commenced, which allowed the plaintiff to be examined for discovery twice, once in each action. In both actions, trial preparation was substantially completed.

[28]         In the circumstances, the sum of $6,500 in fees is awarded for each action, with applicable taxes.

 


Full Rule 15 Cap Amount is Appropriate For Settlement 3 Months Before Trial

November 7th, 2013

Reasons for judgment were published today by the BC Supreme Court, New Westminster Registry,(Berekoff v. McMath) finding that full Rule 15 costs were appropriate where a matter settled 3 months before trial and the only meaningful work that was left related to witness preparation.

In finding costs of $6,500 were appropriate in these circumstances District Registrar Cameron provided the following reasons:

[2]             The parties are at odds as to whether or not the costs that should be awarded to the Plaintiff as mandated by Rule 15-1(15) should be reduced at all from what is called the “cap amount”, or $6,500, for a matter that settles before trial. The Plaintiff asserts that the full amount should be awarded and the Defendant argues for a significant reduction to take into account that not all of the preparation for trial had been done on behalf of the Plaintiff before the settlement…

[7]             In this case, I am satisfied on the evidence that very significant preparation had been done by Mr. Caissie on behalf of the Plaintiff. He submitted if the case had not settled all he would have been left to complete was the final preparation of his client to give evidence at trial, to prepare the Plaintiff’s family physician and his chiropractor to ready them for giving their evidence at trial, and lastly, an attendance at a trial management conference that would have been held on July 11, 2013.

[8]             With all of this I would have awarded the Plaintiff the entire cap amount of $6,500. However, Mr. Caissie had agreed before this hearing that a 10% reduction should be applied and as such I will allow the costs as claimed of $5,850 plus applicable taxes.


Costs for Fast Track Trials Exceeding 3 Days Discussed

October 21st, 2013

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing assesable costs when a fast track trial exceeds 3 days.

In today’s case (Peacock v. Paul) the plaintiff was involved in two collisions.  Although only one of the cases was put into the fast track the Court deemed that Rule 15 applied to both actions.  The trial took a total of 5 days.   ICBC argued that costs should be capped at $11,000 but Mr. Justice Affleck declined to do so and used his discretion to increase costs by $1,500 for each additional day of trial.  In reaching this conclusion the Court provided the following reasons:

[20]         Madam Justice Neilson held that the formula set out in Anderson v. Routbard, 2007 BCCA 193 should be applied to determine what amount should be awarded. This formula involves first determining what portion of the lump sum provided for in the Rule is for pre-trial and trial costs. Madam Justice Neilson calculated this by taking the amount enumerated for a one day or less trial and subtracting it from the amount allowed for a two day or more trial. The difference is then multiplied by the number of days that the trial went over (paras. 31, 39). She concluded:

39        I would therefore allow the appeal, and calculate costs under R. 66(29) as follows. Under the present limits of $5,000 and $6,600 I take the pre-trial portion of costs to be $3,400, and $1,600 as representative of each day of trial. The plaintiff’s offer to settle was delivered only six days before trial. Thus, she is not entitled to double costs for trial preparation. She is, however, entitled to double costs for three and a half days of trial, calculated at $3,200 per day. Total costs are thus $14,600 ($3,400 plus $11,200) before disbursements and taxes.

[21]         Similarly, this approach was used in Lam v. Chui, 2013 BCSC 1281 where the court considered the appropriate costs award in a fast track action where the trial took 13.5 days. The court held that the plaintiff was entitled to costs for 11.5 days after it deducted 2 days representing time wasted as a result of an error made by the parties concerning the date of the loan in question. Calculating the cost of a trial day at $1, 500 using the formula from Majewska, the court determined that the plaintiff was entitled to $23, 750 in costs ($11,000 for the first three days of trial and $1,500 per day for 8.5 days). The same approach was used inShiekh v. Struys, 2013 BCSC 1148.

[22]         In Coutakis v. Lean, 2012 BCSC 1447, the court considered a successful plaintiff’s claim for costs in a fast track action. The trial took five days including one day where trial did not proceed due to illness of the judge. The court held:

10        Under subrule 15-1(15), the court is given a wide discretion to order an amount of costs other than the fixed amounts set out therein. In my view, this is a case which clearly calls for the exercise of that discretion, in favour of the plaintiff. That the hearing of the evidence took three days, rather than two, was largely as a result of the defence’s cross-examination of four of the plaintiff’s treating physicians, and the defence’s tendering as opinion evidence of the consultation report of a neurosurgeon. Hearing the evidence of all of these physicians took more than three hours, and, as I stated in my judgment, all of it was ineffectual. Further time was spent hearing irrelevant evidence from the defendant.

13        Using the amounts prescribed in the subrule as reference points, I award the plaintiff base costs of $14,000, plus disbursements.

[23]         In the case at bar, the trial took two days longer than contemplated by R. 15-1(15)(c). Applying the authorities discussed above, in my view, the costs award should exceed $11,000 by adding a further $1,500 for each of the additional days of trial for a total costs award of $14,000 not including disbursements.


Full Rule 15 Costs Apply Where”Significant Preparation For Trial” Undertaken – TAF is Recoverable Disbrursement

July 29th, 2013

Reasons for judgement were released last week by the BC Supreme Court, Nanaimo Registry addressing two important topics; the assessment of costs for fast track actions when they settle before trial and the recoverability of Trust Administration Fees as a disbursement.

In last week’s case (Christen v. McKenzie) the Plaintiff settled his ICBC claim after litigation was well underway for specified damages plus “costs payable“.  The parties couldn’t agree on these with the Plaintiff seeking full Rule 15 costs and ICBC arguing that a lesser amount should be paid because “a number of pre-trial steps involving a substantial amount of work were still required to be performed as the case settled seven -and-a-half months prior to the commencement of trial“.  Madam Justice Arnold-Bailey awarded the full cap noting that while the trial was a ways off significant trial preparation steps were undertaken and this was sufficient to trigger the Rule 15 cap. The Court provided the following reasons:

[35]         To my mind significant preparation for trial ought to be sufficient to entitle the successful party to costs for pre-trial preparation to the full amount of the cap, presently $6,500 pursuant to Rule 15-1(15). Pre-trial preparation may take various forms given the demands of the particular action. Whether the parties engage in extensive negotiations or mediation and thus achieve a settlement months or days before trial, the preparation by counsel may easily approach that required to actually conduct the trial. The focus ought to be on the amount of useful preparatory work done and not where in the pre-trial timeline the resolution was reached. Indeed, the focus of Rule 15-1 and the Civil Rules generally is to encourage early and fulsome preparation to resolve cases earlier as opposed to later if possible; and also to limit the scope of the proposed trial to what is truly at issue, thus reducing the time and costs associated with resolving the dispute.

[36]         In the present case it is clear that the matter was substantially prepared to the level necessary to achieve a significant settlement prior to trial. While there may be fast track cases where a review of the costs amount claimed for preparation is warranted, this is not one. However one dissects and analyzes what was done or not done to prepare this case for trial, a considerable amount of preparation was performed by plaintiff’s counsel to achieve the sizable settlement. Extensive and protracted negotiations, such as occurred here, ought not to be regarded as requiring significantly less preparation than preparing a case for mediation or trial. Indeed, such negotiations are to be encouraged as the most cost‑effective way of dealing with cases that would otherwise proceed to trial. The efficacy of conducting a fast track action ought not to be undermined by a costs analysis that bogs down in the picayune.

The Court also noted that a Trust Administration fee is a fair disbursement a successful litigant can claim. Madam Justice Arnold-Bailey provided the following comments addressing this:

37]         I note that the plaintiff’s claim for the trust administration fee of $10 plus $1.20 in taxes is not now disputed by the defendant McKenzie and the third party. The following authorities support it being claimed:Parrotta v. Bodnar, 2006 BCSC 787 at para. 25; Polubinski v. Twardowski, 2007 BCSC 843; and McCreight v. Currie, 2008 BCSC 1751. Therefore the plaintiff’s claim for $11.20 in relation to the trust administration fee (including tax) is successful.


Rule 15 Costs Apply to Fast Track Settlement Agreement

February 15th, 2013

Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, confirming that a settlement agreement made in a Rule 15 action for an amount “plus costs” contemplates costs capped under the fast track rule.

In this week’s case (Wan v. Smith Estate) the Plaintiff was prosecuting an injury claim under Rule 15.  As trial neared the Plaintiff accepted a defence settlement offer of $60,000 “plus costs and disbursements” .  The Plaintiff then sought Tarriff costs of over $17,000 as opposed to the capped pre-trial costs of $6,500 under Rule 15.  Mr. Justice Punnett held that Rule 15 costs applied to the settlement agreement.  In coming to this conclusion the Court provided the following reasons:

[13]         It is not disputed that the fast track rule governs.  The plaintiff asks the court to exercise its discretion under the fast track rule.  Her counsel refers to the wording in 15-1(15) “unless the court otherwise orders” in support.  The defendant submits that the reference to “the court” in that section is a reference to the trial court not this Court in chambers.  That is that cost awards are within the discretion of the trial court.  Further they submit that the offer and its acceptance were clear and the costs referenced in the settlement are to be awarded pursuant to Rule 15-1.

[14]         The difficulty with the plaintiff’s submission is counsel’s letter confirming settlement responds to the defendant’s offer of costs.  That offer was clearly for costs under the fast track rule.  In my view the plaintiff cannot now seek to redefine what was meant by “costs”.  It is inappropriate for the court to now vary the agreed upon terms of settlement.



Fast Track Costs Apply Despite 4 Day Trial

January 24th, 2013

As previously discussed, Rule 15 is applicable to BC Supreme Court injury trials with a quantum of less than $100,000 or to trials that can be completed in three days or less.   This week reasons for judgement were published by the BC Supreme Court, Vernon Registry, addressing what costs flow following a Rule 15 trial which exceeds three days.

In this week’s case (Travelbea v. Henrie) the Plaintiff was injured in a collision.  Following a four day trial which was prosecuted under Rule 15 damages of just over $68,000 and costs were awarded.  The Plaintiff sought costs under the Tarriff and the Defendant argued that the capped costs of Rule 15 should apply.  Mr. Justice Barrow agreed with the Defendant and noted that there is nothing sufficient in a trial exceeding three days to depart from Rule 15 costs.  The court provided the following reasons:

6]             In general, the case was conducted in accordance with the parameters set by Rule 15-1. The plaintiff did not conduct an examination for discovery of the defendant. The defendant’s examination for discovery of the plaintiff was completed within two hours. There were no interlocutory applications by either party. The only substantive exception to the limitations imposed by the fast-track regime is that the trial spanned four days…

[10]         The only aspect of this case to which the plaintiff points by way of special circumstance is that the trial was set for four days and, in fact, took almost four days to be heard. I am not persuaded that the circumstance is sufficient to justify otherwise ordering. First, when the notice of trial was filed indicating that four days would be necessary, the plaintiff was content that the matter should remain in the fast-track regime. That is apparent by virtue of the endorsement on the notice and the fact that no application to the court or request to the defendant was made seeking to remove the case from the regime. Second, although the trial took more than three days, it took only marginally more, less than half a day.

[11]         I acknowledge the plaintiff’s submission that the case may have taken much longer had counsel not dealt with the matter so efficiently and co-operatively. To accede to that submission would be, in effect, to sanction a party for doing that which the Rules are intended to promote, namely, to conduct trials in an expedient and efficient way.

[12]         In the result, I am satisfied that the lump sum costs provided for in Rule 15 ought to be imposed in this case, and I order that the plaintiff is entitled to costs under Rule 15-1(15)(c) in the amount of $11,000.


"Compelling Facts and Circumstances" Required to Depart from Rule 15 Pre-Trial Settlement Cap

January 7th, 2013

Further to my previous posts on this topic, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, confirming that when a Rule 15 matter settles pre-trial and the settlement agreement incorporates costs, these should be assessed at $6,500 unless there are compelling facts and circumstances.

In the recent case (Ostadsaraie v. Shokri) the Plaintiff settled his claim 55 days prior to the scheduled trial and also prior to his Trial Management Conference.   The Plaintiff sought $6,500 in costs and Registrar Cameron agreed this amount was appropriate   After canvassing the relevant authorities the Court provided the following reasons:

[8]             In this case, Ms Neathway had done a substantial amount of preparation and delivered a settlement offer that resulted in a settlement of the case some 55 days before trial. There was a housekeeping matter left to be done, a trial management conference – but given the settlement, it did not occur.

[9]             Ms Neathway had delivered all of her expert reports and had prepared and completed all of the discovery in readiness for trial. She was frank to say that she would have needed to interview again one or more of the witnesses that would be called at trial and of course complete the final preparations for her client to give his evidence at trial. Nonetheless, a substantial amount of the preparation had in fact been completed by the time the settlement was made and in the circumstances it is appropriate to award the plaintiff the full amount of the cap…


$20,000 Non-Pecuniary Assessment for "Relatively Mild But Likely Permanent" Soft Tissue Injuries

November 16th, 2012

Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, dealing with damages for minor soft tissue injuries following a so-called ‘low velocity impact‘ collision.

In the recent case (Wallner v. Uppal) the Plaintiff was involved in a 2008 rear-end collision. Fault was admitted.  The collision was relatively minor causing just under $450 worth of vehicle damage.  Despite this the Plaintiff suffered a soft tissue injury to her neck and shoulder.  Her symptoms were “mild” but were expected to linger into the future.  In assessing non-pecuniary damages at $20,000 Madam Justice Stromberg-Stein provided the following reasons:

[14]         The plaintiff’s claim is for damages for a permanent partial disability relating to her intermittent ongoing neck, upper back and shoulder pain and left arm pain, and numbness and tingling she says is caused by the accident.  The plaintiff acknowledges her condition is relatively mild but maintains it is persistent and likely permanent.  She claims she experiences pain and discomfort while commuting to work, at work, doing household work, and during recreational activity.  She complains of intermittent weakness and lack of sensitivity in her left hand.  She claims she is unable to predict when she will be symptomatic.

[15]         In this case, in addition to minimal cosmetic damage to the vehicles, the plaintiff’s subjective complaints were not objectively verifiable, and in any event her injuries were minor and of minimal impact on her life.  The plaintiff has not missed any work and has no claim for past wage loss or for loss of future earning capacity despite maintaining a permanent partial disability.  The evidence establishes the plaintiff suffered soft tissue injuries of a minor nature, with continued minor, intermittent numbness and tingling in her left arm and fingers, which injuries have had and will have minimal impact on her life.

[16]         In the result, based on an assessment of the evidence and considering the authorities relied on by counsel, the plaintiff is awarded general damages in the amount of $20,000.  In addition, she is awarded special damages in the amount of $283, with court order interest.  With the agreement of counsel, costs are set pursuant to Supreme Court Civil Rules, R.15-1(15)(c) at $11,000 and disbursements.


Rule 15 Costs Cap Applied to Settlement of a Non-Rule 15 Claim

November 7th, 2012

Further to my previous posts on this topic (which can be found here and here), reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, finding that the Rule 15 costs cap can apply to a personal injury claim litigated outside of the fast track when a settlement below $100,000 is achieved.

In the recent case (Varga v. Shin) the Plaintiff was injured in a 2006 collision.  The plaintiff initially sought significant damages over $422,000 and the case was prosecuted in the usual course.  It was never put into the fast track rule.  Prior to trial the case settled for $65,000 plus costs “to be assessed or agreed“.  The parties could not agree on the costs consequences with the defendant arguing that the Rule 15 cap should apply.  Registrar Sainty agreed and in doing so provided the following reasons:

[27]         I prefer Ms Taylor’s submissions in relation to the application of the costs provisions of R. 15-1. In my view, this action, even though it was not declared to be a “fast track” action, is subject to the costs provisions of R. 15-1(15). I agree with Ms Taylor’s submissions that R. 15-1(1) is exclusive and not inclusive. In my opinion, if a matter settles for less than $100,000, R. 15-1(15) applies to the costs of the action. This is made clear, in my view, by the addition to the Rules of R. 14-1(1)(f). That subrule effectively fast tracks actions that were not fast tracked but should have been (see Axten, supra, and Affleck v. Palmer, 2011 BCSC 1366). The cases cited by Mr. Warnett (listed above) were all, in my view, decided per incuriam: without reference to either R. 15-1(1) or 14-1(1)(f) in relation to the issue of costs.

[28]         This interpretation is in keeping with the object of the Rules: “to secure the just, speedy and inexpensive determination of every proceeding on its merits” 
(R. 1-3(1)) and the proportionality provisions set out in R. 1-3(2).

[29]         Finally, I note that Mr. Warnett also suggested that, if the defendants wished the provisions of R. 15-1(15) to apply to the action, they ought to have applied to place it into fast track and as they did not do so, they should not be allowed to limit the plaintiff’s costs to the costs allowed under R. 15-1(15). This suggestion cuts both ways however. Just as it was open to the defendants to seek an order bringing the matter into fast track, it was also open to Mr. Warnett to seek an order (even at the trial management conference) that R. 15-1 not apply to the action. He did not do so and as the action is by operation of the Rules a fast track action, it attracts costs per R. 15-1(15).

[30]         As I have found that the action falls within the provisions of R. 15-1(15), thus the plaintiff is entitled to some proportion of the $6,500 “cap” available (see Duong v. Howarth, 2005 BCSC 128; and Anderson v. Routbard, 2007 BCCA 193 [Anderson]). In order to avoid a re-attendance before me (or some other registrar) to determine how much of that cap the plaintiff may claim, I am going to employ some “rough and ready justice” (see Anderson, at paragraph 49 and Cathcart v. Olson, 2009 BCSC 618 at paragraph 19) to this matter. I will set the amount at the full $6,500, plus tax. This matter settled some 15 days before trial. Likely a good deal of the trial preparation had occurred up to the settlement. It is therefore appropriate that the plaintiff receive the full amount of the cap: see Gill v. Widjaja, 2011 BCSC 951 (Registrar), aff’d 2011 BCSC 1822.


Rule 15 Caselaw Update – Costs For Trials Exceeding Three Days

October 25th, 2012

Adding to this site’s archived caselaw dealing with BC Supreme Court’s Fast Track Rule, reasons for judgement were released addressing the appropriate costs for a Fast Track trial which exceeds 3 days.

Rule 15-1(15)(c) fixes costs for fast track trials which exceed two days at $11,000 “unless the court otherwise orders”.   In the recent case (Coutakis v. Lean) the Court held that the circumstances were appropriate to depart from this default amount.

In the Coutakis case the Plaintiff suffered C6/7 disk herniation.   His claim proceeded via fast track trial and ultimately took more than three days to conclude.  The Plaintiff argued that the $11,000 costs cap should be set aside to account for the lengthier than anticipated trial.  Mr. Justice Saunders agreed finding that the pronged hearing was due in part to the Defendant leading “irrelevant” and “ineffectual” evidence.  In assessing costs at $14,000 the court provided the following reasons:

[10]         Under subrule 15-1(15), the court is given a wide discretion to order an amount of costs other than the fixed amounts set out therein.  In my view, this is a case which clearly calls for the exercise of that discretion, in favour of the plaintiff.  That the hearing of the evidence took three days, rather than two, was largely as a result of the defence’s cross-examination of four of the plaintiff’s treating physicians, and the defence’s tendering as opinion evidence of the consultation report of a neurosurgeon.  Hearing the evidence of all of these physicians took more than three hours, and, as I stated in my judgment, all of it was ineffectual.  Further time was spent hearing irrelevant evidence from the defendant.

[11]         I find that the plaintiff is entitled to costs for each of the four days spent hearing evidence and argument, and for the fifth day which was scheduled but on which the trial did not proceed.

[12]         The plaintiff seeks a further allocation for additional preparation associated with the trial being continued eight months after it commenced.  Having reviewed the evidence before the court on the third day of trial, I do not think that the additional preparation would likely have been significant, and in any event any further cost incurred by the plaintiff is addressed by having awarded the plaintiff full costs for the aborted day of trial.

[13]         Using the amounts prescribed in the subrule as reference points, I award the plaintiff base costs of $14,000, plus disbursements.