When a party succeeds in a BC Supreme Court lawsuit the losing party usually has to pay the winner’s ‘costs and disbursements‘. Disbursements are the out of pocket expenses incurred in moving the lawsuit forward. (common disbursements include Court filing fees and the costs of medical reports).
What if your case is complex and your lawyer needs to hire an additional lawyer to properly advance your case? Is this extra legal expenses a reasonable disbursement? Reasons for judgement were released today by the BC Court of Appeal addressing this topic.
In today’s case (Baiden v. Vancouver) the Plaintiff was injured at the hands of the Vancouver Police. Before the matter could proceed to trial the Defendant’s raised a “s. 10 WCB Defence”. A section 10 defence, when successful, prevents a plaintiff from suing in court where the Plaintiff is injured while acting within the scope and course of his/her employment and the at fault entity is also a person or employer that caused the accident in the course of their employment. In these circumstances the Plaintiff must turn to WCB for compensation.
Once this defence is raised, BC Courts cannot deal with its merits rather under s. 257 of the Workers Compensation Act the Workers Compensation Appeal Tribunal (WCAT) has the exclusive jurisdiction to determine the status of parties to a legal action. This is frustrating to Plaintiffs because if this defence is pursued the lawsuit is basically put on hold, a hearing has to be had at WCAT, and only if the defence fails at WCAT can the Plaintiff carry on with their lawsuit. That is exactly what happened in today’s case.
Before heading to WCAT the Plaintiff’s lawyer hired an additional lawyer to assist with the process. Ultimately the WCAT hearing was successful for the Plaintiff and the case proceeded to trial. After judgmenttThe trial judge awarded the Plaintiff $8,400 to compensate him for the additional fee of hiring a second lawyer to deal with the WCB issue. (You can click here to read my article summarizing the trial judge’s reasons)
The Defendants appealed arguing that the judge was wrong in awarding this as a disbursements. The BC Court of Appeal agreed with the Defendants and overturned the trial judge. In doing so the BC High Court provided the following reasons making it clear that the expense of multiple lawyers will rarely be considered a reasonable disbursement:
 The limited authority on this issue in this province supports the view that if counsel retains another lawyer to perform a specialized function due to his or her own lack of experience, it does not follow that such fees are recoverable from the opposing party, but remains a matter between the original lawyer and his client: Noble v. Wong, Bell v. Fantini (1981), 32 B.C.L.R. 322 (S.C.). That is a practical and appropriate approach, and should have been followed here. Outsourcing portions of legal work during litigation and then permitting recovery of that lawyer’s fees as a disbursement undermines the policy of party and party costs. While there may be cases in which this can be justified, they would be limited and exceptional.
 This is not such a case. I would therefore allow the appeal, and set aside the order permitting Mr. Baiden to recover Mr. Ishkanian’s fees of $8,400 as a disbursement.