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Photocopy Disbursements Allowed at $0.25 per Page in ICBC Claim

Written by admin on . Posted in BCSC Civil Rule 14, Uncategorized. 2 Comments on Photocopy Disbursements Allowed at $0.25 per Page in ICBC Claim


(Update October 2, 2012 – The below post was upheld on appeal in reasons for judgement released today)
Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing reasonable photocopy expenses in a bill of disbursements.
In the recent case (Chow v. Nguyen) the parties could not agree to the reasonableness of various disbursements incurred in the prosecution of a personal injury claim.  In the course of the lawsuit the Plaintiff’s lawyer made 7,231 photocopies and claimed disbursements at $0.25 per copy.  ICBC argued this was unreasonable.  Master McDiarmid disagreed and allowed this disbursement as presented.  In doing so the Court provided the following reasons:

[4]Counsel for the defendant and third party also objected to the photocopy charges. She accepted plaintiff’s counsel’s representation that the 7,231 photocopies were in fact made. There was no argument that the photocopying was not necessary or proper; rather, the argument was that the 25¢ per page was excessive given the actual cost of photocopying. When assessing costs, a registrar must determine which disbursements have been necessarily or properly incurred in the conduct of the proceedings, and I must allow a reasonable amount for those disbursements (Rule 14-1(5) of the Supreme Court Civil Rules (the “Civil Rules”)).

[5]Pursuant to Rule 14-1(1) of the Civil Rules, I am to assess costs in accordance with Appendix B. Administrative Notice 5 effective July 1, 2010 directs that photocopying charges may be allowed at 25¢ per page on a party/party bill of costs. This amount is a guideline only. If it is shown that the actual cost was or should have been different from the guideline charges, the amounts allowed on an assessment may differ from the guideline amounts.

[6]The actual cost of photocopying is difficult to determine, in as much as it involves a combination of fixed costs, per page costs, and labour costs. There was no evidence before me to show what the actual cost was. I find that in the circumstances of this case, the number of photocopies was both necessary and proper, and I allow the photocopying charges as claimed in the amount of $1,807.75, plus applicable taxes.

This case is also worth reviewing for the Court’s discussion of document binding charges (dismissed as overhead) and the cost of fairly expensive expert reports which were allowed as being reasonable given the circumstanses of the case.

LVI Defence Rejected; Costs Awarded Despite Small Claims Quantum Judgement

Written by admin on . Posted in BCSC Civil Rule 14, ICBC Back Injury (soft tissue) Cases, ICBC LVI (Low Velocity Impact) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

In my continued effort to document judicial treatment of the LVI Defence, I summarize reasons for judgement released last week by the BC Supreme Court, Vancouver Registry, yet again addressing and rejecting submissions based on this defence.
In last week’s case (Johnson v. Keats) the Plaintiff was injured in a low-speed rear end crash in Burnaby, BC.  The collision resulted in little vehicle damage.  The Plaintiff sustained soft tissue injuries of a relatively minor nature and claimed damages.
At trial the Defendant argued that the injuries were not connected to this low velocity collision.  Madam Justice Wedge disagreed and found the Plaintiff proved his case and awarded $16,000 in non-pecuniary damages.  In dismissing the LVI Defence the Court provided the following reasons:

[24] The defendant argued that the plaintiff had not established causation between the accident and his alleged injuries. The gist of the defendant’s position on causation was that it did not follow that the plaintiff, a strapping young man in reasonable physical shape, could suffer the alleged soft tissue injuries from such a low velocity impact.

[25] The difficulty with this argument is that there is simply no evidence to support it. The defendant did not have the plaintiff examined by a physician or call any evidence to suggest that low velocity impacts could not cause the kind of soft tissue injuries that the plaintiff claimed to suffer as a result of the accident.

[26] Moreover, the defendant did not put that theory to Dr. Lim when she testified. It was not suggested in cross-examination of Dr. Lim that Mr. Johnson was malingering or exaggerating his injuries.

[27] The defendant attempted to attack the plaintiff’s credibility by pointing to what I can only describe as minuscule discrepancies in his evidence.

[28] The plaintiff was a credible and even a quite remarkably low-key witness. He did not attempt to exaggerate his symptoms. His evidence was straightforward and matter of fact. He readily acknowledged he was sufficiently recovered after three weeks to return to light duties and in slightly less than three months was fit to take on the more strenuous labouring tasks of a longshoreman.

[29] Dr. Lim, too, gave forthright and factual evidence. She did not attempt to advocate on her patient’s behalf.

[30] In summary, I am satisfied the accident of March 12, 2009, caused the soft tissue injuries described by the plaintiff and his physician Dr. Lim.

The global damages awarded were below $25,000.  Despite this the Court awarded the Plaintiff costs finding there was sufficient reason to bring the claim in Supreme Court.  In doing so the Court provided the following reasons:

…I am cognizant that the amount of the award falls within the jurisdiction of the Provincial Court. However, the case law establishes that if there is sufficient basis for the plaintiff’s proceeding in this Court, this Court has discretion to depart from the provisions of the Rules limiting costs.

[50] I have considered the issue of costs carefully given the range of non-pecuniary damages for injuries of the nature suffered by the plaintiff. It was reasonable for him to bring his claim in this Court. Accordingly, it is reasonable and fair that the plaintiff receive his costs pursuant to Rule 15-1.

$10,000 Non-Pecuniary Assessment for 4 Month Soft Tissue Injury; Costs Denied Under Rule 14-1(10)

Written by admin on . Posted in BCSC Civil Rule 14, ICBC LVI (Low Velocity Impact) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.


Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for soft tissue injuries sustained in consecutive motor vehicle collisions.
In last week’s case (Liu v. Thaker) the Plaintiff was involved in two collisions, the first in October of 2007 and the second a month later.  Both collisions caused relatively minor soft tissue injuries which largely recovered in 4 months.  In assessing Non-Pecuniary Damages at $10,000 Mr. Justice Schultes made the following findings:

[58] On the whole I would say that the plaintiff’s case offered persuasive evidence of relatively minor soft-tissue injuries, rather than the unpersuasive evidence of more serious injuries that is sometimes seen in motor vehicle injury cases.

[59] I find that Mr. Liu did suffer the injuries that he described and that they were caused by the two accidents for which the defendants have admitted responsibility. These were soft-tissue injuries to the neck and shoulder which had largely resolved by the end of February 2009, about four months after the first accident…

[65] In all the circumstances, balancing the various factors, and having due regard to the range, but not being straight jacketed by it, I consider an award of $10,000 for non-pecuniary damages to be appropriate in this case.

Paragraphs 75-82 of the reasons for judgment are also worth reviewing for the Court’s reasoning in denying the Plaintiff costs findng there was no ‘sufficient reason’ to sue in Supreme Court pursuant to Rule 14-1(10).
Lastly, paragraph 56 is worth reviewing for the Court’s comments addressing the Defendant’s ‘low velocity impact’ testimony.  Mr. Justice Schultes provided the following criticism:
[56] Except as to the bare contours of his involvement in the first accident, I did not find Mr. Thaker’s evidence credible. He sought to portray the impact as so slight as to be virtually negligible — a mere touching of the vehicles, in his view. But he also sought to absolve himself of the responsibility of having caused the accident, even though liability has been admitted on his behalf. This suggested somewhat of a self-serving perspective on his part, which is at odds with the reality of the situation. It also made no sense to me, if the impact had been as trivial as Mr. Thaker claimed, that he would have asked Mr. Liu if he was okay afterwards, as he described. On his version of a mere touching between the vehicles, such an inquiry would have been completely unnecessary.

The High Cost of a Successful WCB Defence in a Personal Injury Lawsuit

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, Uncategorized.


As previously discussed, Section 10 of BC’s Workers Compensation Act operates to generally strip you of your right to sue if you are injured in the course of your employment by someone else in the course of their employment.  If this defence is raised and succeeds in a personal injury lawsuit the claim will be dismissed exposing a Plaintiff to ‘loser pays’ costs consequences.  Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, demonstrating this reality.
In this week’s case (McKay v. Marx) the Plaintiff was injured in a 2005 collision.   His vehicle was rear-ended by a Fed Ex vehicle.  The Plaintiff sued for damages.  There was no dispute that the Defendant was in the course of employment when the crash happened.  The defendant argued that the plaintiff was also a ‘worker’ and therefore his right to sue was stripped away.  The issue was sent to WCAT for determination who ruled that the Plaintiff was indeed a worker.
Given WCAT’s findings the Plaintiff’s lawsuit was dismissed.  The Defendant applied for costs and ultimately was successful.  In doing so Madam Justice Dorgan provided the following reasons:

[32] The circumstances in which the plaintiff found himself are unfortunate and they garner some sympathy. However, the authorities explicitly prohibit this court from denying costs by exercising discretion out of a sense of fairness or sympathy or a comparison of the relative economic strength of the parties.

[33] In summary, the defendants successfully pled a s. 10 Workers Compensation Act defence and are thus the substantially successful party ?? the winner of the event. The evidence as presented falls short of demonstrating such reprehensible conduct on the part of the defendants that would allow the court, in the exercise of its discretion, to depart from the general rule. Accordingly, the defendants are entitled to costs.

Interest on Disbursements Disallowed in Personal Injury Claim

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14.

Update November 17, 2014 – in Reasons released today the BC Court of Appeal overruled the below decisions and found interest on disbursements cannot be recovered.
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Update – May 17, 2013 – the below decision was overturned on Appeal.  You can click here to read about this development
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A very uncertain area of the law relates to recovery of interest on disbursements.  Last year the BC Court of Appeal declined to resolve this uncertainty.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, further weighing in on this inconsistent area of law finding that interest on disbursements is not recoverable.
In today’s case (MacKenzie v. Rogalasky) the Plaintiff was injured in a motor vehicle collision.  In the course of the lawsuit the Plaintiff borrowed $25,000 to finance the disbursements in his case. Following trial the interest on this loan was over $11,000.  The Plaintiff sought to recover this interest but Registrar Sainty declined to allow this claim.  In doing so the Court provided the following reasons:

[33]Based on all of the matters that I have considered — and I have had this matter under consideration for some time; I reviewed all of the submissions before coming here today and then today I have heard even more comprehensive submissions from counsel — I find that I am not bound by the decision of Mr. Justice Burnyeat in Milne. None of the decisions cited to me in favour of awarding interest, including Milne, are on all fours with the facts before me. Milne arose in the context of settlement of an action. Here, the matter was decided following a trial. Further, I find that Mr. Justice Burnyeat’s comments in Milne were obiter and are not binding on me. The case before me is also distinguishable from the decision of Registrar Cameron in Chandi as, in that case, counsel told the Learned Registrar that he was bound by Milne. His Honour was not given the benefit of the submissions I have had regarding the nature of that decision; nor of the impact of theCourt Order Interest Act on his decision. On that basis I may distinguish his reasons.

[34]That, of course, does not end the matter because the fundamental question still remains to be answered: Is this a disbursement that is recoverable by the plaintiff? I think that it is not on the basis of the arguments made by Mr. Parsons, most particularly those related to the impact of the Court Order Interest Act on claims of this nature.

[35]Firstly, a successful party’s right to claim disbursements does not actually arise until the action itself has been determined and so, until the judgment has been rendered, no entitlement arises to recover any costs or any disbursement. Accordingly there can be no right to claim any disbursement until the determination of the action.

[36]The decision in Milne was made without the benefit of the extensive argument that was before me, particularly the argument based on the application of the provisions of the Court Order Interest Act. That Act makes it clear that the legislature did not intend that interest be recoverable on disbursements.

[37]Nor can it be said that the object of costs (as compared to damages for a tortious act) is to return a party to his pre-litigation status and thus interest ought not to be recoverable. Costs are not intended to provide full indemnity to a successful party and the successful party is only entitled to recover necessary or proper disbursements at a reasonable amount. In my view it cannot be said that interest on disbursements is a necessary and proper adjunct of litigation. It is simply one of those unfortunate matters that arose in the circumstances of this particular plaintiff and I find it is not reasonable that the plaintiff recover it.

[38]So, for all of these reasons, I am going to disallow the plaintiff’s claim for interest paid to the third party lender in respect of the loan to fund the disbursements.

Costs and "Transitional Proceedings" in the BC Supreme Court

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, BCSC Civil Rule 24, Uncategorized.


One of the notable changes under the new BC Supreme Court Civil Rules was an increase in Tariff Costs.  If a trial occurred under the former Rules of Court but the reasons for judgement are not delivered until after the new BC Supreme Court Civil Rules came into effect which Rules govern the costs award?  Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, addressing this question.
In this week’s case (X v. Y) the Plaintiff was injured in a 2005 motorcycle collision.  He worked as an undercover RCMP officer and as a result was given permission to have himself and witnesses referred to via initials in the reasons for judgement.  His injuries included a burst fracture in his mid-spine.  His claim for damages was successful at trial which took place under the former Rules of Court.   The reasons for judgement, however, were not released until after the new Rules came into force.
The Defendant agreed the Plaintiff was entitled to costs but argued the lesser costs under the former Rules should apply.  Madam Justice Dardi rejected this argument and awarded costs under the current Rules.  In doing so the Court provided the following reasons:

[10] Under the New Rules a transitional proceeding means a proceeding that was started before July 1, 2010.

[11] Supreme Court Civil Rule 24-1(2) states as follows:

A transitional proceeding is deemed to be a proceeding started under these Supreme Court Civil Rules.

[12] Supreme Court Civil Rule 24-1(14) states that:

If a step in a proceeding is taken before July 1, 2010, the former Supreme Court Rules apply to any right or obligation arising out of or relating to that step if and to the extent that that right or obligation is to have effect before September 1, 2010.

[13] Section 10 of Appendix B to the New Rules provides:

Without limiting section 9, Appendix B of the Supreme Court Rules, B.C. Reg. 221/90, as it read on June 30, 2010, applies to

(a) orders for costs made after December 31, 2006 and before July 1, 2010,

(b) settlements reached after December 31, 2006 and before July 1, 2010 under which payment of assessed costs is agreed to,

(c) costs payable on acceptance of an offer to settle made under Rule 37 or 37B, if that offer to settle was made after December 31, 2006 and before July 1, 2010, and

(d) all assessments related to those orders, settlements and costs.

[14] This proceeding is a transitional proceeding pursuant to Rule 24-1(2) and as such, the determination of costs is governed by Rule 14-1. Although the trial was commenced under the former Rules, the judgment in this matter was rendered on July 18, 2011. The defendants’ obligation to pay damages arose on that date. As there were no rights or obligations arising out of or relating to the trial that were to have effect before September 1, 2010, I cannot conclude that Rule 24-1(14) has any application to the determination of costs in this case.

[15] Furthermore, on a plain reading of Section 10 of Appendix B, Appendix B of the former Rules has no application to this case as there were no relevant offers or orders made prior to July 1, 2010.

[16] In the result I conclude that the New Rules govern the determination of costs in this proceeding.

Plaintiff Stripped of Costs for Failing to "Justify His Choice of Forum"

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, Uncategorized.

As previously discussed, the default position when a Plaintiff is awarded less than $25,000 following a Supreme Court trial is that they are not entitled to costs unless they show “sufficient reason” for suing in that forum.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing this and stripping a Plaintiff of costs who failed to justify his choice of forum.
In this week’s case (Quartey-Harrison v. Klusiewich) the Plaintiff was injured in a motor vehicle collision and following trial was awarded just over $18,000 in damages plus costs “if no submissions (respecting costs) have been received“.
Following this the Defendant provided written submissions arguing the Plaintiff should be deprived of costs because the claim could have been advanced in Provincial Court.  The Plaintiff did not respond to this submission.  Madam Justice Baker stripped the Plaintiff of his costs finding the onus was on him to justify his choice of forum.  The Court provided the following reasons:

[6] The burden is on the plaintiff to justify his choice of forum.  The court is to consider the circumstances at the time the action was commenced.

[7] In this case, Mr. Quartey-Harrison has made no submissions on costs and has offered no evidence on the issue of “sufficient reason” for bringing the proceeding in the Supreme Court.  In the circumstances, I do not think that I should speculate.

[8] In my view, the evidence at trial made it plain and obvious that no award for past or future loss of income or the capacity to earn income, was warranted, and that the mild whiplash type injury suffered by Mr. Quartey-Harrison was unlikely to result in an award in excess of the $25,000 monetary limit in Small Claims Court.

[9] I have carefully considered the submissions made by the defendants in respect of the defendants’ settlement offer but have concluded that Mr. Quartey-Harrison’s right to recover disbursements should not be nullified by the offer.

[10] In summary, each party shall bear its own costs, but the plaintiff is entitled to recover his disbursements from the defendants.

"Ill-Conceived" Dismissal Application Leads To Special Costs Award

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, Uncategorized.


Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, punishing a Defendant in a personal injury lawsuit with a special costs order for bringing an “ill-conceived” motion to dismiss the Plaintiff’s lawsuit.
In yesterday’s case (Wood Atkinson v. Murphy) the Plaintiff suffered a bilateral wrist injury in a 2006 collision.  She sued for damages and the Defendant admitted fault for the crash.  In the course of the lawsuit the Defendant requested employment records relating to the Plaintiff.   The Plaintiff made reasonable efforts to obtain these but the Plaintiff’s employer “mistakenly failed to provide counsel with the Plaintiff’s complete employment file“.  The Court found that this failure was due “to repeated errors or internal miscommunication on the part of (the employer)“.
The Defendant obtained two Court Orders addressing the production of the sought records.  The Defendant then brought an application seeking the dismissal of the Plaintiff’s lawsuit for “material non-disclosure”.  In support of the application to dismiss the Defendant’s lawyer “swore an affidavit erroneously describing the orders“.
Associate Chief Justice MacKenzie dismissed the Defendant’s application and went on to award special costs for the “excessive and draconian” application.  In doing so the Court was critical of the Defendant’s erroneous summary of the disclosure court orders.   Madam Justice MacKenzie provided the following reasons:

[29] I have concluded in the circumstances that it is appropriate to award special costs to the plaintiff for the dismissal application.  It is the mechanism by which the Court expresses its disapproval of two aspects of defendants’ counsel’s conduct. The first aspect is his carelessness in erroneously deposing to the contents of the two orders in question and relying on them to make a very serious application to punish the plaintiff.  This error was a self-serving lack of attention to detail.

[30] Court orders are important. They give effect to the Rule of Law. Counsel cannot simply rely on their notes or fail to be accurate, especially after becoming aware of the disagreement or reservation of the other counsel. Although an application to the court is required to obtain a transcript of submissions at a CPC or TMC, the clerk’s notes are readily available. Indeed, plaintiff’s counsel obtained them to clarify the nature of the orders in question and provided them to defendants’ counsel.

[31] Secondly, it is clear that defendants’ counsel knew well before the hearing that the dismissal application was ill-conceived and was on notice that his version of the court orders was in question.  Nonetheless, he persisted with the application.

[32] An order dismissing a plaintiff’s claim for material non-disclosure is a very serious matter; the consequences for the plaintiff and her counsel would have been severe. This type of application requires a solid foundation of misconduct on the part of the plaintiff, especially considering that the defendants had already admitted liability for her injuries.

[33] The fact the defendants may have become aware of the file and the correct nature of the orders after defendants’ counsel had sworn his September 14, 2011 affidavit (for his application to dismiss filed the next day) is of no moment because he became aware of these matters well before the start of the hearing on September 26, 2011.  He pursued the application in any event.

[34] It is no answer to say that outside counsel was required nonetheless in order to address inconsistencies in counsels’ version of Ms. Tsang’s statements as to whether she had provided the complete file. Those hearsay issues are quite minor in the circumstances of all CBSA’s errors or miscommunications. Plaintiff’s counsel was put to a clearly unnecessary expense in the requirement to retain outside counsel to speak to plaintiff’s counsel’s affidavit. The application to dismiss the claim was misconceived and heavy handed.

[35] I have concluded it is appropriate to award the plaintiff special costs for the defendants’ application to dismiss her claim. The Court heard that application on the afternoon of September 26, 2011, the first of the three-day hearing. It is that day for which plaintiff’s counsel was obliged to retain outside counsel to speak to the affidavit that, amongst other things, corrected the errors in the defendants’ counsel’s version of the two orders.

Provincial Court BackLog Justifies Modest Injury Trials in BC Supreme Court

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, BCSC Civil Rule 9, ICBC LVI (Low Velocity Impact) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 1 Comment on Provincial Court BackLog Justifies Modest Injury Trials in BC Supreme Court


Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff damages and costs for modest injuries following a motor vehicle collision.  Although the claim was straight-forward and damages were within the jurisdiction of the Small Claims Court, the Plaintiff was awarded costs with Mr. Justice Burnyeat finding that the Supreme Court’s summary trial process is a reasonable alternative to the backlog litigants face in Small Claims Court.
In today’s case (Parmar v. Lahay) the Plaintiff sustained a modest whiplash injury as a result of motor vehicle collision.  ICBC ran the “Low Velocity Impact” defence arguing no compensation should be awarded.  The trial proceeded summarily and took less than one day.  The Plaintiff’s evidence was accepted and non-pecuniary damages of $12,000 were awarded.
The Court went on to award costs despite the modest quantum.  In doing so Mr. Justice Burnyeat provided the following reasons:

[9] I cannot reach the conclusion that the legal or factual complexity of the case, the need for discovery of documents and examination for discovery, and the need for a judgment enforceable outside of British Columbia are applicable reasons why this action was commenced in the Supreme Court of British Columbia rather than in Provincial Court.  However, I am satisfied that the summary trial procedure available in the Supreme Court and the availability of costs makes the Supreme Court a preferable and justified forum for this Action.

[10] I take judicial notice that this case reached the Court for decision much more quickly than if the Action had been commenced in the Provincial Court.  In this regard, I take judicial notice of the absence of a considerable number of judges at the Provincial Court level and the backlog in hearing matters that the failure to appoint more judges has produced.

[11] I also take into account the ability of the Plaintiff to have costs awarded in this Court but not in Small Claims Court.  In that that regard, I adopt the reasoning of Harvey J. in Zale v. Colwell, 2010 BCSC 1040, where he states:

In each of the above three decisions [Spencer v. Popham, supra; Faedo v. Dowell, 2007 BCSC 1985; and Kanani v. Misiurna, 2008 BCSC 1274] the primary reason for awarding the plaintiff costs, in circumstances not unlike these facing the plaintiff here, was the consideration that given the need to retain counsel to battle an institutional defendant, a reasonable consideration in determining the forum is the matter of indemnity for the costs of counsel.  (at para. 14)

[12] I also adopt the statement of Humphries J. in Kanani, supra:

… in a situation where the defendant put the plaintiff to the proof of having suffered any injury at all, thus making her credibility a crucial issue at trial, it was reasonable for the plaintiff to require the assistance of counsel.  She was therefore justified in commencing the action in Supreme Court where she could hope to recover some of the costs it was necessary for her to expend in retaining counsel to recover the compensation to which she was found to be entitled. This reasoning has application here as well. (at para. 8).

[13] I take into account that it may well be economically unrealistic for counsel to be retained for up to three appearances in Small Claims Court where the damages sought are nominal.  This must be contrasted with the institutional defendant and its unlimited resources.  In an action in Supreme Court, counsel for a plaintiff is only required to appear once in Court if an application pursuant to Rule 9?7 of the Supreme Court Civil Rules is appropriate.  In the case at bar, the application has taken approximately one hour.

[14] In the circumstances, I am satisfied that the Plaintiff should be entitled to his costs throughout on a Party and Party (Scale B) basis.

Plaintiff Awarded $9,500 Costs Despite $4,000 Damage Assessement

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 1, BCSC Civil Rule 14, BCSC Civil Rule 15.


Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, with the “curious result” of costs recovery at over double the amount of assessed damages.
In last week’s case (Kargbo v. Chand) the Plaintiff was involved in a motor vehicle collision.  ICBC disputed both fault and injury.  At trial the Plaintiff’s claim was accepted and modest damages of $4,000 were awarded.  The Plaintiff sought her costs.  ICBC opposed arguing the Plaintiff did not have sufficient reason to sue in Supreme Court.
Earlier this year the BC Court of Appeal made it clear that more than the value of an ICBC Claim can be considered in deciding whether there is sufficient reason to sue in the Supreme Court.  Mr. Justice Williams went on to canvass factors other than value and concluded that the Plaintiff was entitled to $9,500 in costs under Rule 15-1(15).  The Court provided the following reasons:

[9] The problem ultimately reduces to this: If the Court determines that the plaintiff had sufficient reason for commencing or proceeding in the Supreme Court, she should be entitled to recover costs in accordance with Rule 15-1(15). If the Court finds that there was not sufficient reason for bringing the proceeding in this Court, then she is not entitled to recover her costs.

[10] In Reimann v. Aziz, 2007 BCCA 448, the Court of Appeal clarified that the issue has to be analyzed as at the point in time that the plaintiff initiated the action; there is no ongoing obligation to assess the quantum of claim.

[11] I have been provided with a number of decisions where judges of this Court have assessed the circumstances of cases to decide whether or not an order for costs is warranted. Obviously, the plaintiff bears the onus of establishing that there was sufficient reason for filing in the Supreme Court. It is not simply a matter of assessing the anticipated value of the claim. A number of factors have been identified in the cases as being relevant to the issue. These include the following (the list is not intended to be exhaustive):

1.         the legal or factual complexity of the case;

2.         the need for discovery of documents and examinations for discovery;

3.         the need for a judgment enforceable outside of British Columbia;

4.         a bona fide preference for a jury trial;

5.         access to the summary trial procedure available in Supreme Court; and

6.         the need for the plaintiff to have legal counsel, in light of the defendant’s denial of liability, dispute as to causation, injury or loss and allegations of contributory negligence, pre-existing conditions, previous causes and a failure to mitigate.

[12] In the present case, liability was denied and in the circumstances could reasonably have been expected to represent a challenge to prove. As well, the issue of damages had the real potential of being a problem. The plaintiff had a history of prior accidents and had been hospitalized shortly after the accident in question for matters not related to the accident. She was also injured in another more serious accident some several months after the accident at bar. It was the sort of case that a self-represented plaintiff would find daunting no doubt.

[13] Taking those considerations into account, it is my view that this plaintiff had sufficient reason for bringing her proceeding in the Supreme Court.

[14] As a parenthetical observation, it is true that a party such as this plaintiff could elect to pursue the claim in the Provincial Court with legal counsel, although the prospect of incurring the expense to do so without any right to recover court costs is a legitimate factor to consider. As well, where the plaintiff elects to bring suit in the Supreme Court, she runs the real risk of an adverse costs outcome if the action is unsuccessful.

[15] In the circumstances, it is my view that the plaintiff should be entitled to costs in accordance with the Rules of Court. I recognize that might appear to produce a curious result in that the award of costs is substantially greater than the damages that she recovered. However, if the matter is considered fairly and objectively and the relevant rule applied, that result follows.

[16] There is no question that the policy which underpins Rule 14-1(1) is to encourage parties with claims of modest value to bring their action in the Provincial Court, and to provide for a penalty against one who does not. That is consistent with the concept of proportionality which is a foundational consideration of the Court’s Rules.

[17] The clear default position will be that, with respect to claims where the award is less than $25,000, the plaintiff will not be entitled to an award of costs. Nevertheless, there will be situations where there is sufficient reason to bring the action in the Supreme Court. It will be for the Court to examine the circumstances of each particular case to determine whether or not there is sufficient reason.

For more cases addressing sufficient reasons to sue in Supreme Court you can click here to access my archived posts on this topic.