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Costs Ordered To Be Paid To Insured Defendant; Not Insurer

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14. 64 Comments on 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.

Double Costs Awarded to Plaintiff After Besting Formal Settlement Offer

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9, Uncategorized. 65 Comments on Double Costs Awarded to Plaintiff After Besting Formal Settlement Offer

Reasons for judgement were released recently by the BC Supreme Court, New Westminster Registry, addressing costs consequences following a trial where a Plaintiff bested his formal settlement offer.
In the recent case (Delgiglio v. British Columbia (Public Safety and Solicitor General)) the Plaintiff was injured after a RCMP officer ran a red light resulting in a collision.  The officer was found negligent at trial and damages of just over $330,000 were assessed.
Prior to trial the Plaintiff provided a formal settlement offer of $175,000.  The Plaintiff sought double costs for besting the offer.  In finding it appropriate to award double costs Madam Justice Gropper provided the following reasons:

Consideration of the factors

Was the offer one that ought reasonably to have been accepted?

[6] At the time the offer was made, the parties were approximately two weeks to trial. They had exchanged all the documents, the examinations for discoveries were complete and all the medical reports were exchanged.

[7] The defendants’ response is that the case reflected complex causation issues involving indivisible injuries.

[8] I consider this factor to favour the plaintiff’s position. While causation was a significant issue, it was addressed by the plaintiff’s physicians in their medical legal reports. The defendants did not tender any medical legal reports. The defendants had the plaintiff’s medical legal reports at the time the offer was made and was therefore in a position to evaluate the offer in spite of its consistent position in respect of causation.

Relationship of Offer and Judgment

[9] The plaintiff asserts that the offer of November 15, 2011 contained a meaningful element of compromise. He also argues that the assessment of damages significantly exceeded the compromise of settlement which the plaintiff offered two weeks before the trial. The defendants state no position in respect of this factor. This factor supports the plaintiff’s position.

Relative financial circumstances

[10] This factor is self evident: the plaintiff is an individual and the defendants have significant resources available. This factor supports the plaintiff’s position.

Other factors

[11] The plaintiff raises the defendants’ contact, particularly in regard to the question of liability.

[12] While I have found that the defendants were entirely liable for the accident, I do not consider that this constitutes a basis for awarding double costs to the plaintiff.

[13] Based upon the application of the factors referred to in Rule 9-1(6), I find that the plaintiff is entitled to his costs at Scale B up to November 14, 2011, and double costs thereafter. The plaintiff is entitled to his assessable disbursements. The double costs rule does not apply to disbursements.

More on the Reality of Insurance and Costs Consequences Following Trial

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9, Uncategorized.


Update March 21, 2014 – the Trial Judgement with respect to the relevance of insurance and costs was upheld today by the BC Court of Appeal
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In 2010 the BC Court of Appeal confirmed that Judges can look at insurance when considering the “financial circumstances” of litigants when addressing costs consequences following trials where a formal settlement offer was made.  Further reasons were released last week by the BC Supreme Court, Victoria Registry, confirming that costs consequences should not be applied with the ‘fiction‘ of ignoring insurance.
In last week’s case (Meghji v. Lee) the Plaintiff suffered brain trauma after being struck by a motorist while walking in a marked cross-walk in 2003. At trial the motorist was found 90% at fault for the crash with the Ministry of Transportation shouldering the remaining 10% for designing the intersection with inadequate lighting.
Prior to trial the Plaintiff offered to settle for $750,000.  Neither Defendant accepted.  Damages at trial were assessed at just over $1.1 Million with the Defendants being jointly and severally liable.  The Plaintiff sought and was awarded double costs from the time of her offer onward.  In doing so Mr. Justice Johnston provided the following useful reasons addressing the reality of insurance and the risks of joint and several liability:

[33]Also relevant to consider is the fact that a well-funded party, such as MoTH,  faces higher risk with joint liability when other potentially liable parties have less means or no means with which to satisfy a possible judgment. In such circumstances, the well-heeled party may end up paying more than its proportionate share to the plaintiff if or when the impecunious party exhausts its ability to pay.

[34]This risk is balanced by the potential that the plaintiff might be held partly to blame for her losses, which would confine the well-funded party’s liability to its proportionate share of the loss through several liability: Leischner (Next friend of) v. West Kootenay Power, [1982] B.C.J. No. 1641…

[40]Quite apart from the fact that I am bound by the decision in Smith v. Tedford, its reasoning eliminates one fiction that ought not to complicate proceedings before a judge alone. That fiction is that there is no plan of universal compulsory automobile insurance in effect in British Columbia, mandated by statute, where the details of the coverage available are found in statute and regulation. If judges and others are presumed to know the law, there is little sense in requiring that judges ignore what the law provides when dealing with costs.

More on Rule 15 and Pre Trial Costs Assessments

Written by admin on . Posted in BCSC Civil Rule 15, Uncategorized.


Last year Master Baker released reasons for judgement assessing pre-trial settlement costs of a Rule 15 lawsuit at $6,500.  Today reasons for judgement were released upholding this analysis finding no error was made in such an assessment.
In today’s case (Gill v. Widjaja) Mr. Justice Harvey provided the following reasons upholding the Master’s decision:

[47] I turn now to the matter of the tariff fees allowed by Master Baker of the $6,500 in costs.

[48] Rule 15-1(15) reads:

(15) Unless the court otherwise orders or the parties consent, and subject to Rule 14-1(10), the amount of costs, exclusive of disbursements, to which a party to a fast track action is entitled is as follows:

(a)  if the time spent on the hearing of the trial is one day or less, $8,000;

(b) if the time spent on the hearing of the trial is 2 days or less but more than one day, $9 500;

(c) if the time spent on the hearing of the trial is more than 2 days, $11 000.

[49] The Rule, as written, gives the registrar wide discretion in determining the appropriate tariff amount.  Master Baker was aware of the steps taken in the litigation and the date of settlement relative to the trial date.

[50] Having regard to the aforementioned test that I must apply, I am not of the view that an error in principle has been demonstrated nor do I find that the master was clearly wrong in his determination that the appropriate cost of tariff amount was $6,500.

[51] The express purpose of Rule 15-1 is to streamline the process both for trial and, presumably, taxation of costs.  Parsing out the details in each action where the amounts do not apply is not, in my view, the proper course.  Indeed, were it, in this action there was a settlement conference which no doubt necessitated some significant preparation, much like trial preparation, and, as well, a trial management conference.  Each of those events resulted in discussions leading to the settlement of this matter.

[52] In those circumstances I find no error in principle such as to interfere with the finding of the master.

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.

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.

Silence Means Loser Pays

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, Uncategorized. 66 Comments on Silence Means Loser Pays


If a BC Supreme Court Judgement is silent with respect to costs following trial the default Loser Pays system kicks in as a result of Rule 14-1(9).  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, discussing this default position.
In last week’s case (Habib v. Jack) the Plaintiff’s personal injury lawsuit was dismissed following trial. The trial Judge’s reasons did not set out any costs order.  The Defendant sought their costs but the Plaintiff opposed this arguing that silence on costs in the trial judgement makes the issue ‘res judicata’.  Madam Justice Ross disagreed and provided the following short but useful reasons:
[9] The plaintiff’s res judicata argument has previously been considered and rejected by this court. In Graham v. Great West Life et al., 2004 BCSC 1544, Sinclair Prowse J. considered the argument that silence in earlier reasons for judgment regarding costs is tantamount to an order that there will not be an order for costs. After reviewing the authorities she found that if reasons are silent, by operation of Rule 57(9), there is a presumption that costs will follow the event unless either party objects to the order being framed in that manner, in which case an application for costs should be made to the court. The present Rule 14-1(9) contains the same presumption.

More on ICBC's Subrogated Costs Rights (Or Lack Thereof)

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Earlier this year the BC Supreme Court released reasons for judgement finding that when a Defendant succeeds in a lawsuit and is awarded costs the order is for their benefit not their insurer.  In short the Court held that ICBC has no subrogated right to costs awards under section 84(1) of the Insurance (Vehicle) Act.  Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, taking an opposite view of this issue.
In this week’s case (Habib v. Jack) the Plaintiff was injured while riding on a bus.  She sued the bus driver and bus company but had her claim dismissed at trial.  The Defendant was awarded costs with Madam Justice Ross giving ICBC the benefit of this costs award.  The Court provided the following brief reasons:
In the result, the defendants will have their costs. Under s. 84(1) of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231, the Insurance Corporation of British Columbia (“ICBC”) is subrogated to its insured and is entitled to recover the costs to which the insured would be entitled. Accordingly, ICBC is entitled to recover the costs awarded to the defendants.
Given the contradictory recent court findings on this issue I suspect the BC Court of Appeal will be asked to weigh in on the topic of insurers subrogated rights to costs following the successful defence of a lawsuit.

More on Costs and the Flexibility of the New Rules of Court

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(Update June 5, 2013- the underlying trial verdict was upheld in reasons for judgement released today by the BC Court of Appeal)
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As previously discussed, one of the best changes in the New Rules of Court is the ability for trial judges to have discretion in assessing costs consequences where one party bests their formal settlement offer at trial.
Generally where a Plaintiff fails to beat a Defence formal settlement offer they can be punished with a significant costs award.  Fortunately Rule 9-1 does not force a Court to this result and instead leaves some discretion in the process.   This discretion was demonstrated in reasons for judgement released last week by the BC Supreme Court, New Westminster Registry.
In last week’s case (Gatzke v, Sidhu) ICBC, on the Defendant’s behalf, made a formal settlement offer of $50,000.  The Plaintiff proceeded to trial and after a split finding of liability was assessed damages at “an amount to someting less than $10,000“.
ICBC brought a motion to be awarded post offer costs.  Mr. Justice Saunders refused to make this order instead simply ordering that the Plaintiff be deprived of her post offer costs and that the Plaintiff pay the disbursements associated with bringing the Defendant’s IME doctor to trial.  In reaching this result the Court provided the following reasons:

[14] …. Ordinarily, where a plaintiff obtains judgment for less than the amount offered in settlement, the legislative purpose of the Rule would be fulfilled by awarding the defendant its costs from the date the offer was made.  However, where there is a very significant gap between the judgment amount and the offer, it may be the case that a defendant is in a better position for having gone to trial, even taking its counsel’s fees into account.  This appears to have quite possibly been the case in the present circumstances.  The damages assessed, net of the plaintiff’s contributory negligence, are a small fraction of the offer.

[15]Defendants should not be discouraged from making generous settlement offers.  But where the end result is dramatically different than the offer resulting in a net savings to the defendant, a defendant found to be partially at fault can reasonably expect to bear some of the cost of obtaining that result.

[16]The plaintiff apparently has very limited financial means.  This factor, however, will be given the most weight where it is the subject accident, or other issue between the parties, which is responsible for the plaintiff’s circumstances.  That is not the case here.

[17]The defendants, on the other hand, were presumably being defended by the Insurance Corporation of British Columbia.  An insured defendant’s greater financial ability to defend is a factor which was described by the B.C. Court of Appeal in Smith v. Tedford, 2010 BCCA 302, as being a matter “of no small importance to considering whether and to what extend the financial circumstances of the parties, relative to each other, bear on an award of costs”.

[18]This appears to have been a case where both parties undertook a course of action based on an overestimation of the risk to the defendants.  There is no compelling case, in the circumstances, for awarding the defendants the entirety of their post-offer costs.  Given the plaintiff’s financial circumstances and the very modest damages, the purpose of the Rule will be met by awarding the plaintiff 30% of her costs to the date of the offer, and awarding the defendants only the disbursements incurred in association with the attendance at trial of their expert witness, Dr. Sovio.  Dr. Sovio’s attendance at trial was only required for cross-examination at the plaintiff’s request, and it is appropriate that this cost be borne by the plaintiff.  That amount is to be set off against the plaintiff’s award of damages.

No "Principled Basis" To Award ICBC Costs Following Trial in Place of Defendant

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


As previously discussed, the BC Supreme Court has a “loser pays” system.  In short this means that the losing party generally has to pay the winning sides costs.  Since most personal injury lawsuits are defended by ICBC (or other insurance companies) do they get the benefit of a costs award when they are on the winning side of a lawsuit or do the costs get paid to the insured Defendant?  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing this interesting issue.
In last week’s case (Wong v. Lee) the Plaintiff sued for damages following a motor vehicle collision.  The lawsuit was dismissed with Jury finding that the Defendant was not responsible for the crash.  Ultimately the Plaintiff was ordred to pay the Defendant costs.  ICBC argued the costs award should be in their favour (presumably to make it easier to exercise their collections rights under the Insurance (Vehicle) Act).  Madam Justice Dardi refused to make this order finding that there is no ‘principled basis’  to do so.  The Court provided the following reasons:
[35] The defendants contend that any costs awarded to them ought to be paid directly to ICBC, who is not a party to this proceeding. The defendants acknowledge that there does not appear to be any authority directly on point.


[36] The paramount principle to be derived from the authorities is that any discretionary exceptions to the usual costs rules must be made judicially: Bailey v. Victory (1995) 4 B.C.L.R. (3d) 388, 57 B.C.A.C. 23 (C.A.) at para. 13.

[37] The defendants primarily anchor their submissions on s. 84(1) of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231 [formerly s. 26 of the Insurance (Motor Vehicle) Act]. Section 84(1) of the Insurance (Vehicle) Act provides as follows:

84  (1) On making a payment of benefits or insurance money or assuming liability for payment of benefits or insurance money, an insurer

(a) is subrogated to and is deemed to be the assignee of all rights of recovery against any other person liable in respect of the loss, damage, bodily injury or death of a person to whom, on whose behalf or in respect of whom the payment of benefits or insurance money is made or to be made, and

(b) may bring action in the name of the insured or in its own name to enforce the rights referred to in paragraph (a).

[38] On a plain reading of s. 84(1) of the Insurance (Vehicle) Act, the provisions pertain to the statutory subrogation issues between the insured and the insurer, which issues were not before me in this litigation. It is axiomatic that this subsection is not determinative of the dispute between the plaintiff and the defendants in this case. An award of costs to ICBC, who is not a party to this proceeding, would constitute a departure from the usual rule that the defendants who were the successful parties in this litigation be awarded costs. In my view, these statutory provisions do not establish a basis for an order displacing the usual rule…

[44] While the Court of Appeal in Perez v. Galambos, 2008 BCCA 382, recognized the jurisdiction to make a costs award in relation to a non-party, the Court observed that such an award is unusual and exceptional, and should only be made in “special circumstances” (at para. 17). The Court stated that a non-party who is funding litigation can be liable for costs as the real litigant if they have put forward an insolvent party as a “man of straw” to avoid liability for costs or if the non-party has promoted the litigation improperly so as to be liable for the tort of maintenance. The Court in Perez declined to order that the insurer who defended the action pay the costs of the successful plaintiff. Since the facts in this case are clearly distinguishable from those in Perez, that case does not assist the defendants. Moreover, I also note that neither counsel brought it to the Court’s attention that this decision was reversed by the Supreme Court of Canada and the issue of costs was left to the parties to resolve or, in the alternative, remanded back to the Court of Appeal for further consideration. It does not appear that there has been any further consideration by the Court of Appeal.

[45] In their submissions the defendants also cite Qureshi (Guardian ad litem of) v. Nickerson (1991), 77 D.L.R. (4th) 1, 53 B.C.L.R. (2d) 379 (C.A.). However, in my view there is no principle to be derived from Qureshi that supports the defendants’ submission that ICBC should be entitled to an award of costs in this case. In that case, the plaintiff argued that the defendant had not incurred any costs in his successful defence of a medical malpractice claim because those costs had been paid on his behalf by the Canadian Medical Protective Association. The Court of Appeal found that there was no contract of indemnification and no right of subrogation between the defendant and the Canadian Medical Protective Association. The Court concluded that in the absence of a right of subrogation, and having not incurred any liability for fees and disbursements in defending the claim, the defendant was not entitled to a costs award against the plaintiff.

[46] In summary on this issue, I am not persuaded that in the circumstances of this case, there is any principled basis upon which this Court should order that the plaintiff pay costs to the non-party ICBC.