Costs Ordered To Be Paid To Insured Defendant; Not Insurer

When an ICBC insured Defendant is awarded costs following successfully defeating a BC Supreme Court lawsuit, do the costs get paid to the litigant or to the insurer?  To date there are contradictory authorities addressing this (you can click here to read a case awarding costs to the party and here for a case awarding them to ICBC).
Adding to the uncertainty, reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, indicating that the personal defendant gets the benefit of the costs payment.
In this week’s case (Nadeau v. Okanagan Urban Youth & Cultural Association) the Plaintiff was injured when struck by a vehicle.  He sued a personal defendant arguing he was the driver and also ICBC arguing that they were liable in the event that the personal defendant was not the driver.  The Claim against the personal driver was ultimately dismissed and the claim against ICBC succeeded.
The Defendant was awarded costs, however, Mr. Justice Powers found that a ICBC should be responsible for payment of the costs to the  personal Defendants.  In doing so the Court provided the following reasons:
[135]     . I order that the plaintiff recover 85 percent of his costs from the defendant, ICBC, at Scale B. I also order that the plaintiff recover the costs he is required to pay to Mr. Usseni and James Mugambi and James Kibigi from the defendant, ICBC. I am satisfied that this is one of those cases which fall within Rule 14-1(8) of the Civil Rules, where the plaintiff should recover the costs it pays to those defendants as a disbursement in its bill of costs against the defendant, ICBC.
[136]     The central issue in this proceeding on liability was which vehicle struck the plaintiff and who was operating that vehicle. If it was not the vehicle owned by Ms. Mutanda and driven by Mr. Usseni, then it would be a vehicle operated by an unidentified driver. The only question with regard to liability of the defendant, ICBC, for the unidentified driver, was whether the accident occurred on a highway so that s. 24 of the Act applied. Of course, the extent of the negligence of the operator and of Mr. Nadeau were also in issue, but those were in issue in any event.
[137]     In this case, not only was it reasonable for the plaintiff to bring its action against Mr. Usseni and Ms. Mutanda, James Kibigi and James Mugambi, as well as ICBC pursuant to s. 24 of the Act, it was the only course available to the plaintiff. There were real and legitimate issues of fact as well as issues of law that could not be resolved without a proper trial. The cause of action against each defendant was the same. The only issue was which defendant was liable depending on findings of fact.
[138]     In my opinion, it would be unfair to require the plaintiff to pay the costs of Mr. Usseni, Ms. Mutanda, James Kibigi and James Mugambi, without the ability to recover those costs from the unknown driver, or in this case, ICBC, pursuant to their liability under s. 24 of the Act.

Lawyer Ordered to Pay Costs Personally for "Shoddy Piece of Counsel Work"

In an illustration of a seldom used power, reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, ordering a Plaintiff’s lawyer to pay costs to Defendants personally pursuant to Rule 14-1(33) after bringing an unsuccessful application to renew a lawsuit.
In this week’s case (Drover v. BCE Inc.,) the Plaintiff sued various Defendants challenging system access fees collected by cellular companies.   It was a proposed class action.  The lawsuit was filed in 2004 and various Defendants were served the lawsuit via fax.  Some Defendants questioned the propriety of fax service to which the Plaintiff’s lawyer responded “we believe the Court will accept service by Facsimile“.
No steps were taken to perfect service until 2012 when the matter was brought before the Court with the Plaintiff asking the Court to permit “the plaintiffs to serve the statement of claim”.  The Court refused noting that the Plaintiff’s lawyer “did not bother to consider the relief that might be available under the Rules.  Instead, he seemed to be content with putting a general concept in his application in the hope of attracting the court’s sympathy.”  The Court found this was “unacceptable” and dismissed the application after canvassing the factors under Rule 3-2(1).
Mr. Justice Weatherill awarded multiple Defendants costs and further ordered that the Plaintiff’s lawyer personally pay these.  In doing so the Court provided the following reasons:
[62]         In my view, this is an exceptional case.  The conduct of counsel for the plaintiffs has caused costs to be wasted through delay and neglect.  Plaintiffs’ counsel neglected this action for over 8 years.  When he got around to dealing with it by bringing this application, he failed to set out the proper relief.  Furthermore, the application was not supported by any evidence explaining either the delay or the failure to comply with the Rules regarding the need for an endorsement and proper service.  Moreover, the application was brought against defendants against whom there was no basis for the order(s) sought.  To say that this was and has from the outset been a shoddy piece of counsel work would be an understatement.
[63]         I am ordering that E.F. Anthony Merchant, Q.C. be personally liable for the foregoing awards of costs, payable forthwith.

Defendant Ordered to Pay 25% Greater Trial Costs for "Reprihensible" Failure to Attend Examination for Discovery

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:
[6]             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.
[7]             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…
[10]         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.
[11]         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.
[12]         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.
[13]         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.
 

Plaintiff Awarded Partial Costs Despite Having Claim Dismissed at Trial

Reasons for judgement were released this week by the BC Supreme Court, Cranbrook Registry, highlighting the Court’s discretion with respect to costs consequences following a trial in which a pre-trial formal settlement offer was made.
In this week’s case (Russell v. Parks) the Plaintiff was injured when struck by the Defendant’s vehicle while walking in a parking lot.   Liability was at issue and ultimately the Plaintiff was found 2/3 responsible for the incident.  After factoring this split in the Plaintiff’s assessed damages came to  $28,305.  Prior to trial ICBC paid more than this amount in Part 7 benefits which are deductible from the damage assessment pursuant to section 83 of the Insurance (Vehicle) Act.
Despite proving partial liability against the Defendant and further proving damages, the Plaintiff’s claim was ultimately dismissed due to the above statutory deduction with Mr. Justice Abrioux providing the following reasons:
[20] In my view, this reasoning applies to this case, where the application of section 83(5) of the Act results in there being an award of $0 to the plaintiff. Accordingly, the action is dismissed and this should be reflected in the order.
Prior to trial ICBC made a formal settlement offer for $25,000 of ‘new money’.  The Court needed to consider what costs consequences ought to flow in these circumstances.  In awarding the Plaintiff 75% of pre-offer costs and having each party bear their own post offer costs the Court provided the following reasons:
[21] The dismissal of the action does not necessarily mean the plaintiff is disentitled to any costs: see McElroy v. Embleton, at para. 10.
[22] The first question is, putting aside for the moment the issue of Part 7 benefits paid, how should costs be apportioned from the time of the commencement of the action until April 13, 2012? At trial, I found the defendant to be one-third liable for the plaintiff’s loss. ..
[28] Having considered these authorities, and subject to my findings below regarding the Part 7 benefits, I find the plaintiff is entitled to 75% of his costs up to the date of the settlement offer of April 13, 2012. This reflects the fact that although the amount of time spent on determining liability at the trial was not “minimal”, more time was spent regarding the assessment of damages. This was shown in the medical evidence led, the reports which were obtained and the like. It would be unjust not to exercise my discretion to depart from the default rule referred to in paragraph 26 above in these circumstances.
[29] The next issue is whether the payment of the Part 7 benefits should affect the award of costs…
[43] This is not an appropriate case, in my view, to conclude as is submitted by the defendant that the plaintiff should not have proceeded to trial. It was not readily foreseeable to either party what the result was going to be with respect to liability or the quantum of damages. In so far as liability is concerned, I noted at para. 31 of my reasons for judgment that cases dealing with competing duties of pedestrians and operators of motor vehicles are highly fact specific.
[44] Taking all of these factors into account, I conclude that for the time period up to the defendant’s settlement offer of April 13, 2012, the plaintiff shall be awarded 75% of his costs and disbursements…
[45] What is the effect of the settlement offer made by the defendant for $25,000 of “New Money” as defined in counsel’s correspondence dated April 13, 2012? The New Money was in addition to the Part 7 benefits already received by the plaintiff. No objection was taken by the plaintiff to the form of the defendant’s offer to settle…
[62] Upon considering the factors in R. 9-1(6), I do not accept the defendant’s submission that double costs are appropriate. There is no reason for the plaintiff to be subject to a punitive measure. He was not unreasonable in rejecting the settlement offer. The issues at trial made the apportionment of liability quite uncertain. There was also a considerable range in the amount of damages which could have been awarded. The plaintiff’s finances would be greatly impacted if an order for double costs was made against him. In addition, the end result was effectively a nil judgment.
[63] Taking into account the legal principles to which I have referred and the particular circumstances which exist in this case, I conclude each party should bear their respective costs after the date of the defendant’s offer to settle. The plaintiff has already suffered some financial consequences for proceeding to trial in that I have decided he shall not receive 100% of his costs until the defendant’s offer to settle, but rather 75% of those costs.
 

"Fat Bottomed Girls" and "Kangaroo Court" Comments Strip Successful litigant of Costs

Update – July 22, 2013the below action was overturned on appeal with the Defendant being ordered to pay general damages, punitive damages and special costs due to his “misconduct during the trial
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Earlier this year I highlighted a judgement addressing whether a litigant blogging about witnesses during the course of a trial, and referenceing ‘fat bottomed girls’ in the process, amounted to witness intimidation.
Reasons for judgement were released today (Mainstream Canada v. Staniford) by the BC Supreme Court, Vancouver Registry, dealing with the costs consequences following the underlying trial.
Ultimately the Plaintiff’s defamation claim against the Defendant was dismissed.  The Defendant would ordinarily be awarded his costs and disbursements under the BC Supreme Court’s ‘loser pays’ system.   Madam Justice Adair refused to follow this ordinary course, however, finding that the Defendant’s conduct during the trial was ‘deserving of rebuke‘ and ultimately stripped him of 75% of the costs he otherwise would be entitled to.  In doing so the Court provided the following reasons:
 [5]             The general rule is stated in Rule 14-1(9) of the Supreme Court Civil Rules:  “costs of a proceeding must be awarded to the successful party unless the court otherwise orders.”  Thus, Rule 14-1(9) continues to confirm the residual discretion of the court to deny, on a principled basis, a successful party the costs to which it would otherwise be entitled:  see LeClair v. Mibrella Inc., 2011 BCSC 533 (“LeClair”), at para. 9.  Where the successful party has engaged in misconduct, the outcome of the litigation is irrelevant, and the court has the power to deprive the successful party of costs…
8]             The discretion conveyed to a judge under Rule 14-1(9) is extremely broad:  see LeClair, at para. 30…
[12]         I described some of Mr. Staniford’s conduct in my Reasons for Judgment as follows, at paras. 88-92:
[88]      . . . During the trial, Mr. Staniford relaunched the GAAIA website, this time using a service provider outside of Canada.  During his cross-examination, Mr. Staniford proclaimed that he would not be stopped by an injunction pronounced in this action.
[89]      Shortly before the trial, and after the witness lists had been exchanged, Mr. Staniford accused the Ahousaht First Nation of accepting “blood money” from Cermaq in one of his Facebook postings. 
[90]      Mr. Staniford looked on the trial as an opportunity to get his message out, and he did not hold back.  For example, in Internet postings during the trial, Mr. Staniford demeaned and mocked the physical appearance of three of Mainstream’s witnesses, Mary Ellen Walling, Leanne Brunt and Dr. Gallo.  Mr. Wotherspoon brought the comments concerning Ms. Walling and Ms. Brunt to my attention when court was convened the morning of January 26, 2012.  The matter was discussed in court and was framed (appropriately) as an issue of Mr. Staniford victimizing Mainstream’s witnesses by his insulting comments.  Mr. Staniford was present during the discussion.  Despite that, Mr. Staniford then repeated his comments about Ms. Walling and Ms. Brunt outside court for an interview that was published on YouTube.
[91]      During his testimony, Mr. Staniford attempted to justify his comments about Ms. Walling and Ms. Brunt as being “very complimentary,” and said he thought Ms. Walling should be “flattered” at being labelled a “fat-bottomed girl.”  The notion that Mr. Staniford would ever pay a sincere compliment to Ms. Walling is, itself, laughable and entirely unbelievable. 
[92]      In another Facebook posting during the first week of the trial, he compared the trial to a kangaroo court….
[15]         By engaging in the conduct I described, Mr. Staniford demonstrated his disrespect for witnesses and his disdain generally for the court and the judicial process. 
[16]         Mr. Staniford’s flagrant disregard of my comments during the discussion on January 26, 2012 concerning his victimization of witnesses and in my ruling (indexed at 2012 BCSC 1609) is particularly troubling.  His YouTube interview shortly after my ruling is roughly equivalent to giving the court “the finger,” as he did to Mainstream and its lawyers in response to their demand letter.  Mr. Staniford’s attitude (as expressed during his cross-examination) seemed to be that since Lord Denning’s comments (which I adopted) had been made in the early 1960s, they did not apply to him and he could ignore them.  Once again, Mr. Staniford demonstrated that he is a bad listener.  His repetition in court, and under oath, of his ridiculous justification for his sexist and puerile comments about Ms. Walling and Ms. Brunt – that the comments were complimentary and flattering – insulted the intelligence of anyone who had to listen to it. …
[20]         Although I consider Mr. Staniford’s misconduct in connection with the trial to be serious and clearly deserving of censure, I think that depriving the defendants of all of their costs of the action is too severe, given the dollar amounts likely involved for a 20-day trial.  I have concluded that an appropriate order is that the defendants have 25% of their assessed costs and disbursements.  (There should be only one set of costs for both defendants.)  Depriving the defendants of 75% of their assessed costs and disbursements, in my view, reflects appropriate condemnation of Mr. Staniford’s misconduct.

"Reprehensible" Government Conduct Results in Special Costs Order

Adding to my archived posts addressing tensions between BC’s Judiciary and the Government, reasons for judgement were released today by the BC Supreme Court, Victoria Registry, finding the Government acted in a ‘reprehensible‘ way when dealing with Provincial Court Judges salaries in resorting to “secretive…unconstitutional considerations“.  This resulted in an order for payment of special costs.
Today’s case (Provincial Court Judges’ Association of British Columbia v. British Columbia (Attorney General)) is the latest chapter dealing with a salary dispute between the Provincial Court Judges’ Association of BC and the Government.  The PCJA succeeded in their petition respecting the remuneration dispute.   The PCJA then sought payment of special costs associated with the litigation   Mr. Justice Macaulay agreed this was an appropriate remedy and provided the following rebuke to the Government:
[12]         The aggravating feature in the present case is the entirely inappropriate response of the AG in the Cabinet submission. The AG knew that the Cabinet submission focused on issues, including the question of linkage between judicial and other civil servant salaries, that the Supreme Court of Canada had expressly rejected in Bodner as unconstitutional. That is evident from the wording of the submission and is deserving of censure.
[13]         Given the importance of the process to the public and the PCJA, coupled with the need for transparency in this proceeding, two other matters also deserve censure. First, ordinarily a copy of the Cabinet submission would not be produced. It was only produced in this case as a result of court order. If the Cabinet submission had not been produced, the court may not have appreciated that the government response was based on constitutionally inappropriate considerations. In part, that is because the government affidavit material described the content of the Cabinet submission in a misleading way.
[14]         Second, the AG spoke to the media on May 25, 2011, and specifically raised the linkage to other salaries as “another factor” for consideration by government in formulating its response. The AG did not provide an affidavit or any sworn evidence in this proceeding but he did respond, albeit by letter of his counsel, to questions that counsel for the PCJA raised respecting the media interview. Counsel for the PCJA describes the response as disingenuous. I am not prepared to go that far in the circumstances but the response was certainly less than forthright. The actual content and context for the interview is only available because the media recorded it.
[15]         In my view, the government’s conduct relating to the important constitutional process of setting judicial remuneration as well as its conduct during the judicial review proceeding deserve judicial rebuke. I reach this conclusion reluctantly but have kept in mind that the effectiveness of the process necessarily depends on the goodwill of government. The secretive resort to unconstitutional considerations during the framing of the government response is entirely inconsistent with the obligation of government as was its failure to be forthright during the proceeding.
[16]         In the result, the Legislative Assembly made its decision not understanding how Cabinet arrived at its decision. The public, the PCJA and the court are all entitled to more from the AG and the government
[17]         As a result, the PCJA is entitled to its costs, to be assessed as special costs.

Litigation Guardians Are Not Immune From "Loser Pays" Costs Consequences

Update September 25, 2013 – The below decision was upheld by the BC Court of Appeal in reasons released today
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I’ve written many times about the BC Supreme Court’s “loser pays” system which generally requires a losing litigant to pay for the winner’s costs and disbursements.  If a lawsuit is started on a child’s behalf and on reaching adulthood they take over the claim themselves can the former litigation guardian still be exposed to loser pays costs consequences?  The answer is yes as was demonstrated in reasons for judgement released this week by the BC Supreme Court, Vancouver Registry.
In this week’s case (McIlvenna v. Viebeg) a lawsuit was commenced on behalf of an infant plaintiff in 2003.  By 2009 the Plaintiff was an adult and took over the prosecution of his claim himself by filing an affidavit of attainment of majority.  The matter proceeded to trial and the claim was ultimately dismissed.  The Defendant was awarded costs.  An issue arose as to whether the Plaintiff or the previous litigation guardian were liable to pay these.  The Court held that the Litigation Guardian was liable for costs up until the Plaintiff reached the age of majority and the Plaintiff was liable from that point onward.   Mr. Justice Sigurdson provided the following reasons:
[17]         Although Bird J.A.’s comments on the liability of litigation guardians for costs in Miller were dicta, they were considered dicta.  Bird J.A. concluded that an infant ratifying the action after attaining the age of majority does not inherit and replace the litigation guardian’s liability for costs.  I have seen nothing in the authorities that lends support to the position that a defendant’s possible entitlement to costs from a litigation guardian disappears when the infant reaches majority.  I expect that subsequent to Miller, litigation guardians starting actions (and filing affidavits at the time) understood their potential liability for costs and the fact that it continued at least up to the infant’s majority.  Rule 20-2(12) and (13) do not suggest that the filing an affidavit upon attaining the age of majority removes any possible past liability of the litigation guardian for costs. 
[18]         While it is true that a possible adverse costs order may deter a person from suing as a litigation guardian, there are also policy reasons that support awarding costs in favour of successful defendants.  In any event, I think the underlying law has been clear for more the 50 years that a litigation guardian assumes potential liability for costs if he or she starts an action as a litigation guardian and is not successful. 
[19]         Accordingly, my conclusion is that Shawne McIlvenna, the plaintiff’s former litigation guardian, is responsible for the costs that I have already ordered, up to February 27, 2009, when the plaintiff filed his affidavit of majority. ..

LVI Defence Rejected Again; Damages Awarded for Modest Injuries


In an all too familiar development reasons for judgement were released last week by the BC Surpeme Corut, New Westminster Registry, considering and rejecting ICBC’s “Low Velocity Impact” defence.
In last week’s case (Hoy v. Harvey) the Plaintiff was involved in a 2010 rear-end collision.  The impact resulted very minor vehicle damage.  The defendant argued that the Plaintiff “could not have sustained his claimed injuries from such a minor impact“.  Madam Justice Fitzpatrick rejected this logic and provided the following reasons:

[46] As in most motor vehicle injury cases involving soft tissue injuries, the defence cites the oft quoted decision in Price v. Kostryba (1982), 70 B.C.L.R. 397, where Chief Justice McEachern, as he then was, stated that the Court must exercise caution in respect of subjective complaints of pain in respect of those soft tissue injuries (at 399).

[47] I agree that the extent of this collision is relatively minor and that this is a factor to be considered when assessing Mr. Hoy’s claims of injury. However, it is equally clear that even low impact collisions may cause injuries. In Lubick v. Mei and another, 2008 BCSC 555, Mr. Justice Macaulay stated:

[5]        The Courts have long debunked as myth the suggestion that low impact can be directly correlated with lack of compensable injury. In Gordon v. Palmer, [1993] B.C.J. No. 474 (S.C.), Thackray J., as he then was, made the following comments that are still apposite today:

I do not subscribe to the view that if there is no motor vehicle damage then there is no injury. This is a philosophy that the Insurance Corporation of British Columbia may follow, but it has no application in court. It is not a legal principle of which I am aware and I have never heard it endorsed as a medical principle.

He goes on to point out that the presence and extent of injuries are determined on the evidence, not with “extraneous philosophies that some would impose on the judicial process”. In particular, he noted that there was no evidence to substantiate the defence theory in the case before him. Similarly, there is no evidence to substantiate the defence contention that Lubick could not have sustained any injury here because the vehicle impact was slight.

[6]        I am satisfied that Lubick sustained an injury in the collision in spite of the low impact.

[48] Generally speaking, I found Mr. Hoy to have given his evidence in a straightforward and direct manner. His subjective complaints of pain were confirmed by objective testing by both his family physician, Dr. Yong, and his physiotherapist, Ms. Mattiello. It is accepted that prior to the accident, Mr. Hoy was in good health and was suffering none of the complaints that arose just after the accident.

[49] In these circumstances, I am satisfied that the injuries suffered by Mr. Hoy in the accident were caused by the accident and that accordingly, causation has been proven.

The Court went on to note that the Plaintiff suffered minor soft tissue injuries which went on to make full recovery.  In awarding $7,000 for non-pecuniary damages the Court provided the following reasons:
[71] In this case, Mr. Hoy’s most significant injuries can be said to have been resolved fairly quickly. His neck injury was only significant for a period of approximately two months which coincided with his last treatment by his physiotherapist, Ms. Mattiello. Thereafter, he would have pain only once per month for four further episodes. His back pain persisted to the point of affecting his lifestyle only for a period of approximately three months, when he returned to work full-time and began to resume his sporting activities. All symptoms were completely resolved by May 2011, or within 11 months…
[77] I award the sum of $7,000 for non-pecuniary damages.
Lastly, paragraphs 93-104 of the reasons for judgement are worth reviewing for the Court’s analysis in declining to award the Plaintiff costs finding there was no sufficient reason to bring this modest claim in Supreme Court.  You can click here to read other decisions addressing this discretionary issue.

"Genuine Sympathy" Not Enough to Move Away From Loser Pays Consequences


As previously discussed, a Plaintiff’s financial circumstances is not relevant when assessing “loser pays” costs consequences following trial in the BC Supreme Court (subject to the different analysis that applies when pre-trial formal settlement offers have been made).  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, demonstrating this.
In last week’s case (Staley v. Squirrel Systems of Canada Ltd.) the Plaintiff sued the Defendant for damages due to alleged wrongful dismissal.  The claim was dismissed at trial.  The Defendant applied for costs to be paid with the Plaintiff opposing arguing, in part, that his poor financial circumstances should preclude such a result.  Mr. Justice Williams disagreed and ordered that the Plaintiff pay the Defendant’s costs.  In doing so the Court provided the following reasons:
[17] Regrettably, I find myself unable to accede to the plaintiff’s submissions. The Rule with respect to costs is quite fundamental. While there is some latitude for judicial discretion, the authorities make abundantly clear that the discretion must be exercised in a principled and, I would conclude, cautious manner. Deviation from the basic principle that a successful litigant shall recover must necessarily be carefully constrained…

[21] The third basis for his application is that he is unemployed and experiencing difficult financial circumstances.

[22] While no evidence is before the Court to establish precisely what his present situation is, I will accept that it is not good. I have genuine sympathy for this plaintiff. I am sure that the requirement to pay costs to the defendant will be a real burden for him in his circumstances.

[23] Indeed, I expect that it is frequently the case that there are substantial discrepancies between the means of parties to litigation. Unsuccessful litigants are not infrequently in difficult financial straits, and orders for costs can exacerbate that situation.

[24] However, I am unable to conclude that an order requiring him to pay the defendant’s costs, in accordance with the relevant tariff, $11,000, would be so “unfair and inappropriately punitive” to make the order sought. There are no special circumstances in this case which warrant an order for reduced costs or relieving the plaintiff from paying the defendant’s costs.

Bullock Orders and Judicial Discretion


As previoulsy discussed, when a Plaintiff sues 2 parties and succeeds only against one the Court had a discretion under Rule 14-1(18) to order that the unsuccessful defendant pay the successful defendants costs.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, demonstrating the flexibility of this discretion in action.
In last week’s case (Bakker v. Nahanee) the Plaintiff was injured when struck by a stolen vehicle being driven by the Defendant.  The Plaintiff sued for damages and, as is customary in BC, also sued the Registered owner of the vehicle alleging vicarious liability pursuant to section 86 of BC’s Motor Vehicle Act. As the lawsuit progressed it became clear that the at fault vehicle was indeed stolen making the vicarious liability claims untenable.
Ultimately the action was dismissed against the owner and a settlement was reached with respect to the claim against the driver.  The Plaintiff applied for an order that the Driver pay the costs of the successful owner.  Madam Justice Fitzpatrick agreed such a result was justified but only until the examination for discovery phase where it was obvious that the vicarious liability claims would not succeed.  The Court provided the following reasons:

[40] Supreme Court Civil Rule 14-1 (18) provides that the Court may exercise its discretion in ordering that the costs of one defendant be paid by another defendant:

If the costs of one defendant against a plaintiff ought to be paid by another defendant, the court may order payment to be made by one defendant to the other directly, or may order the plaintiff to pay the costs of the successful defendant and allow the plaintiff to include those costs as a disbursement in the costs payable to the plaintiff by the unsuccessful defendant…

[52] It is not a novel concept that when preparing pleadings, all parties who are potentially liable should be included where a valid cause of action can be reasonably advanced. This applies equally in the arena of motor vehicle litigation. In this respect, Mr. Bakker also relied on the evidence of Mr. David Kolb, a Vancouver lawyer who practices in this area. He states that an owner of the vehicle in question is always named as a defendant arising from the statutory vicarious liability under the Motor Vehicle Act. He goes on to state that even if the car was purportedly stolen, it is wise to err on the side of caution and name all parties until further investigations are done to ensure that all facts are known before the owner is released from the litigation. He cites as an example, that while the driver/thief and the owner may have different names, further investigations may in fact reveal that they were related and resided together, in which case the owner would be liable even if a stolen vehicle is involved. There may also be issues of fraud or improper motive on the part of the owner who reported the vehicle as stolen. Until such facts as may establish liability are ruled out, it is a prudent practice to name the owner.

[53] In these circumstances, as a general proposition, I am of the view that Mr. Bakker was reasonable in naming Ms. Ang and GMAC as defendants to this action…

[77] In my view, and exercising my discretion, the granting of a Bullock order is appropriate in the circumstances but the order should be limited, similar to that which was ordered in Cominco at 212. Accordingly, Mr. Bakker is entitled to a Bullock order but only in respect of the costs incurred up to and including the examination for discovery of Ms. Ang on September 20, 2007. By that time, Mr. Bakker’s counsel had elicited sufficient evidence from Ms. Ang to be satisfied that she and GMAC had no vicarious liability and that there were no mechanical issues relating to the vehicle. Beyond September 20, 2007, I am unable to say that it would be just or fair to fix Mr. Nahanee with the costs of Ms. Ang and GMAC.

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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