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Costs and Sufficient Reason to Sue in the Supreme Court: Clarity from the BCCA

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


Welcome reasons for judgement were released today by the BC Court of Appeal addressing when a Plaintiff has ‘sufficient reason‘ for suing in the BC Supreme Court.  In short the top BC Court ruled that trial judges can look beyond the value of a claim when addressing this topic.  This issue is important because generally a Plaintiff who succeeds in a Supreme Court lawsuit but is awarded below $25,000 (the current monetary jurisdiction of the BC Provincial Court) will be deprived of costs unless they have ‘sufficient reason‘ for suing in the Supreme Court.
In today’s case (Gradek v. DaimlerChryster Financial) the Plaintiff was injured in a 2006 collision.  His lawsuit was successful and he was awarded damages of just over $9,000.  The trial judge also awarded costs of $6,600.  In doing so the trial judge made the following useful findings when individuals sue an insured defendant:

[42]      The plaintiff is who he is.  As such, he would have had extraordinary difficulty presenting a case on his own.  While the defendant, represented by the insurer, suggested that in Provincial Court it might, at times, be represented by an adjuster, in my view, whether the defendant was represented by an adjuster or a lawyer the plaintiff would have been outmatched.

[43]      In my opinion the plaintiff required counsel to obtain a just result. Costs are not awarded in Provincial Court.  [Emphasis added.]

ICBC Appealed this order arguing that a court can only look at the likely value of a claim when deciding whether there is sufficient reason to sue in the BC Supreme Court.  The Court of Appeal disagreed and dismissed the appeal.  In doing so the Court provided the following useful reasons addressing the scope of ‘sufficient reasons‘ under Rule 14-1(10) of the Civil Rules:

[16]        The words “sufficient reason” are not defined in the Rules of Court.  In their ordinary and grammatical sense, they do not suggest a specific limitation in terms of application, although it is clear that “any reason” will not do.  The reason has to be “sufficient”, but there is nothing in the Rule to suggest that it has to be connected solely to the quantum of the claim.  On the other hand, the words do not connote the exercise of a discretion, with its attendant deferential standard of review.  That point was made by this Court in Reimann v. Aziz, 2007 BCCA 448, 72 B.C.L.R. (4th) 1, at para. 13:

[13]      At the outset, I observe that the application of Rule 57(10) does not involve an exercise of discretion.  For a plaintiff who recovers a sum within the jurisdiction of the Small Claims Court to recover more than disbursements, the court must make a finding that there was sufficient reason for bringing the action in the Supreme Court.

[17]        In support of its position, the appellant relies on the nature and purpose of the legislative scheme which, he submits, reflect an intention on the part of the Legislature to confine the meaning of the words “sufficient reason” to reasons relating only to quantum as assessed at the outset of the claim.  In that respect, it is common ground that the primary purpose of denying costs in the Supreme Court to those with monetary claims of $25,000 or less is to encourage claimants to bring their claims in Small Claims Court, with its simplified procedures and greater accessibility to judicial dispute resolution.  Litigating in the Supreme Court when the amount of money involved is relatively small can be prohibitive for both the “winner” and the “loser”.

[18]        I am in general agreement with the appellant’s submission in its factum (at para. 33) that the object of the small claims procedures set out in the Small Claims Act, R.S.B.C. 1996, c. 430 and Rules, B.C. Reg. 261/93 is “to provide parties, and lay litigants, in particular with an easily understandable, flexible, and less costly alternative to the Supreme Court”.  I am also prepared to accept that, in most cases, the pre-trial procedures, including pre-trial disclosure of documents and expert reports, mediation services, settlement conferences and recovery of such reasonable expenses as interpreter fees, provided in the Provincial Court, will enable the parties to proceed in a cost-efficient manner to a just result.  But, that will not always be the case.  In this instance, for example, the trial judge was satisfied that Mr. Gradek’s circumstances required the assistance of counsel to obtain a just resolution of his claim.  It is implicit in his reasons that he considered that it would be unjust to find that Mr. Gradek require counsel to properly present his claim, on the one hand, and to deny him costs which would partially offset the expense of retaining counsel, on the other.  It was on this basis, in part, that he found there was “sufficient reason” within the meaning of Rule 57(10) to bring the action in the Supreme Court with its attendant relief for the successful party in costs.

[19]        Without endorsing all of the factors relied on by the trial judge as constituting “sufficient reason” in this case, I am satisfied that there may be circumstances which may constitute sufficient reason for bringing an action in the Supreme Court, thereby triggering its costs provisions, despite the fact that it is apparent from the outset that the award will fall within the monetary jurisdiction of the Provincial Court.  It is open to a defendant who believes that the claim should not have been brought in the Supreme Court to apply under s. 15 of the Supreme Court Act, R.S.B.C. 1996, c. 443, to have the matter transferred to the Provincial Court.  Alternatively, if the matter proceeds in the Supreme Court, it is open to the defendant to ask that a successful plaintiff be denied costs on the basis that there was not sufficient reason to bring the action in the Supreme Court in the first instance.

[20]        I accept that the narrow interpretation of the words “sufficient reason” advocated by the appellant would provide greater certainty to litigants in knowing the consequences of proceeding in Supreme Court where the matter falls within the Small Claims monetary limit.  But I agree with the trial judge that if the Legislature had intended to limit the scope of the words “sufficient reason” to the extent suggested by the appellant, it could readily have done so.  While I am satisfied that the words, “sufficient reason” should not be interpreted in an expansive manner, but with restraint, I am also satisfied that they must be read in such a way that a trial judge is not forced to deny a party costs where he is satisfied, as here, that justice can only be achieved as between the parties by an award of costs to the successful party.

Costs Awards For Settlements Below $100,000

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, BCSC Civil Rule 15, Uncategorized. 58 Comments on Costs Awards For Settlements Below $100,000


(Note: The case discussed below was upheld on appeal in July, 2011 by Madam Justice Ker)
As previously discussed, Rule 15 is the new BC Fast Track Litigation Rule and it is mandatory for cases for damages seeking less than $100,000 and for cases that “can be completed within 3 days“.
Rule 15-1(15) generally limits costs awards for fast track lawsuits to no more than $11,000.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, addressing whether this limit applies to non-fast track cases that settle for less than $100,000.  In short, Master Keighley held that it can, however, when a case has been removed from the fast track the costs restriction does not apply.
In today’s case (Johnson v. Axten) the Plaintiff started the lawsuit under the former Rule 68.  The parties consented to remove the case from Rule 68 prior to trail and obtained a Court order to that effect.  The case then settled after the new Rule 15 came into force.  The settlement was for $90,000 plus costs and disbursements.  The Defendant argued that the Rule 15 cap on costs should apply.  Master Keighley disagreed finding that while it could apply, it should not in the circumstances of this case.  The Court provided the following useful reasons:

[17]         The Majewska case does, however, contain this helpful observation on the issue of “opting out” of Rule 66, at para. 34:

Moreover, it is important to recognize that parties to a R. 66 action are not compelled to remain in the fast track process. If the spectre of “special circumstances” emerges at any time during the action, whether in the form of complex issues, offers to settle, increased trial time, or any other situation, the parties may consent to removing the case from R. 66, or obtain an order to that effect under R. 66(8). Thus, if a concern arises that costs under R. 66(29) will not be adequate, this can be remedied by taking appropriate action during the proceeding.

and at para. 36:

“Here, if the plaintiff was concerned that R. 66 was no longer appropriate, the proper response was to apply for removal from the fast track litigation. If she chose not to take that step, she should have no basis for complaint that her costs are limited by R. 66(29).”

[18]         In other words, a party who opted out of Rule 66 prior to trial was not limited by Rule 66(29). It is noteworthy that Rule 68, which governed this action prior to the parties “opting out” contained no limitation on costs. Also noteworthy is that Rule 15?1 as well as the case with its predecessors, provides for opting out of the provisions for the Rule and in this case the parties did so.

[19]         Ms. Deane-Cloutier says that although Rule 15-1 does not, on its face, contemplate settlement, neither did Rule 66(29), but that did not prevent the court from holding that the subrule applied to settlement of cases governed by the Rule. That submission, with respect, ignores however the very clear statement of the Court of Appeal in Majewska: that once Rule 66 ceased to apply to an action, a party would not be limited to costs recoverable under Rule 66(29).

[20]         The plaintiff’s costs will be assessed pursuant to Schedule B of the Supreme Court Civil Rules. While I agree that Rule 15-1(1) provides that cost limitations apply to cases which were not “fast tracked” but should have been (regardless of the intentions of the parties), the rule nonetheless provides that even if otherwise applicable, it will not apply to cases where the court has ordered that it will cease to apply. The court did so here, with the consent of the parties and, as a result, the cost limitation set out in Rule 15-1, does not apply.

Costs Awarded To Plaintiff Following Successful Part 7 Action of "Limited Monetary Value"

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, ICBC No-Fault (Part 7) Benefits.


As previously discussed, if a Plaintiff successfully sues in the BC Supreme Court and is awarded damages under $25,000 (the current monetary limit of the BC Small Claims Court) the Plaintiff will not be entitled to costs unless they had ‘sufficient reason‘ for suing in Supreme Court.  Useful reasons for judgement were released today by the BCSC, New Westminster Registry, addressing this issue after a Part 7 Benefits trial.
In today’s case (Derbyshire v. ICBC) the Plaintiff was injured in a motor vehicle collision.   She was employed as a commercial painter and as a result of the crash became disabled from her own occupation.  She was insured with ICBC who provided one week of disability benefits and then refused to reinstate these.
The Plaintiff’s treating GP and a rheumatologist supported the fact that the Plaintiff was disabled.  ICBC obtained an ‘independent medical examination report‘ from an orthopaedic surgeon who concluded that the Plaintiff “should have been able to have resumed her previous level of activity” within 8 weeks of the crash.
The Plaintiff sued in the Supreme Court and ultimately was successful with Mr. Justice Saunders finding that ICBC was wrong in cutting off the Plaintiff’s rehabiliaiton and disability benefits.  The total value of the Plaintiff’s claim by the time of trial was well below $25,000 however the Court went on to award costs finding that Plaintiffs suing for on-going benefits under Part 7 have sufficient reason to sue in the Suprene Court.   Mr. Justice Saunders provided the following reasons:
I accept what Mr. Cabanos says regarding the apparent, at this point, potentially limited monetary value of the claim being within the jurisdiction of the Provincial Court, but Mr. Milne is quite correct that the test for costs is whether it was appropriate to bring this action and this application in Supreme Court.  In my view, it was appropriate given the indeterminate size of the total benefits that could be granted to the claimant over the entire course of her disability and it was further appropriate with respect to the summary disposition mechanisms that are available in this court, the alternative in Provincial Court only being a full trial.

The High Cost of Losing an ICBC Injury Claim

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, BCSC Civil Rule 9, Uncategorized.


I’ve written many times about the significant costs a party can be exposed to for being on the losing end of a BC Supreme Court lawsuit.  Reasons for judgement were released today further demonstrating this reality under the New BC Supreme Court Rules.
In today’s case (Chen v. Beltran) the young Plaintiff entered an intersection against a red light on his skateboard.  He was struck by a vehicle operated by the Defendant and sustained injuries.  He sued for damages but his claim was dismissed with the Court finding him entirely at fault for the accident.
Rule 14-1(9) of the BC Supreme Court Rules typically requires a losing party to pay costs to a successful party.  ICBC relied on this section and requested that their costs of over $75,000 be paid by the Plaintiff’s family.   The Plaintiff opposed arguing that no costs should be awarded.  One of the reasons advanced by the Plaintiff was that such an order would “financially cripple the (plaintiff’s) family“.
Mr. Justice Greyell rejected this argument.  The Court, while disallowing some of the most significant disbursements claimed by the Defendant, did go on to order that the Plaintiff pay the Defendant’s costs.  In rejecting the “financially crippling” argument Mr. Justice Greyell reasoned as follows:
[11] The first basis upon which the plaintiff says the defendants should be denied costs is that Allan suffered significant injuries in the Accident and will require ongoing medical and psychological care throughout his life.  His ongoing care will involve significant cost to both his parents.  Allan’s parents have already incurred substantial debt to prosecute the lawsuit, have limited financial resources and will have difficulty providing for Allan’s future care even if they are successful on this application.  The plaintiff says that an order for costs will financially “cripple” the family.  While I have great sympathy for Allan’s parents the case law is clear that the financial circumstances of a litigant, standing alone, are not to be taken into consideration as a factor in the awarding of costs…

[14]         It is clear based on the above authorities that this Court is unable, on any principled basis, to take the plaintiff’s financial circumstances into account in determining whether to award costs.

[15]         To conclude otherwise would undermine the rationale underlying Rule 14-9 and would likely lead to the promotion of litigation rather than to promote the “winnowing” function described by Hall J.A. in Catalyst Paper.  It would lead to a collapse of the general principle discussed in the authorities and result in the unacceptable proposition that costs in each case would be measured not by a party’s success but by the personal financial circumstances of the litigants.

It is worth noting that this result should be contrasted with cases decided under Rule 9-1(5) where the Court does have a discretion to consider a party’s financial circumstances following trial where a formal offer of settlement was made.
Today’s case demonstrates the real world expenses that can be associated with losing an ICBC Claim in the BC Supreme Court.  It is vital to gauge these costs and the risks of trial prior to putting a case before a Judge or Jury.

Lump Sum Costs and the New BC Supreme Court Rules

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


Reasons for judgement were released today by the BC Supreme Court, Kamloops Registry, finding that the new Civil Rules give the BC Supreme Court the power to award lump sum costs without the need for taxation.  Madam Justice Adair held that this power was not available under the former rules absent party consent.
In today’s case (Madock v. Grauer) the Plaintiffs sued the Defendants for damages.  At trial one of the Defendant’s was ordered to pay $5,000 in damages.  The parties could not agree on the cost consequences that followed and applied to the trial judge to address this issue.   Madam Justice Adair ultimately held that the Plaintiff was entitled to costs and fixed these at $11,000.  In doing so the Court provided the following reasons about the ability of trial judges to award lump sum costs:

[47]         Under Rule 14-1(15), “The court may award costs (a) of a proceeding . . . and in awarding those costs the court may fix the amount of costs, including the amount of disbursements.”  This Rule is to be contrasted with its counterpart in the old Rules, Rule 57(13), which provided, and I am going to emphasize the first few words:

With the consent of the parties, the court may fix a lump sum as the costs of the whole proceeding, either inclusive or exclusive of disbursements and expenses.

A key change in the new Rule is that consent of the parties is no longer necessary, before the court can fix lump sum costs.

The Court went on to use the new concept of ‘proportionality‘ and found that this was an appropriate case to order lump sum costs.  Madam Justice Adair provided the following reasons:

[49]         I have concluded that these siblings and Mr. Grauer would not be well-served by having a forum – namely, taxation of costs – in which they can continue to litigate over the late Mr. McKenzie’s estate.  Moreover, prolonging litigation among these parties is, in my opinion, out of all proportion to the amount involved, the importance of the issues in dispute and the complexity of the proceeding.  Rather, it is now time for finality.  The costs consequent on my judgment following the trial must also be in some rational proportion to the amount ultimately recovered, which was $5,000.  The costs – indeed the double costs – that the plaintiffs suggest in their submissions they should be awarded are out of all proportion to what would be reasonable.

[50]         I have therefore concluded that, in this case, orders should be made for lump sum costs under Rule 14-1(15)

The Price of Passing the Buck: Dismissed Third Party Claims and Costs Consequences

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, Uncategorized. 46 Comments on The Price of Passing the Buck: Dismissed Third Party Claims and Costs Consequences


As previously discussed, when Plaintiffs lose a lawsuit in the BC Supreme Court the Defendants are typically each entitled to recover their ‘costs‘.   For this reason Plaintiffs need to take care in selecting the Defendants to their lawsuit.  The same principle holds true for Defendants who don’t accept blame for their actions and unsuccessfully try to pass the buck by dragging a ‘Third Party’ into a lawsuit.  Reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, demonstrating this general principle.
In this week’s case (Vedan v. Stevens) the Plaintiff sued the Defendant for personal injuries.  The Defendant denied fault and blamed the Plaintiff.  The Defendant also filed a “Third Party” claim against two individuals arguing they may be at fault and brought them into the lawsuit.  Ultimately Madam Justice Beames found that both the Plaintiff and the Defendant were at fault for the Plaintiff’s injuries but that the Third Parties were faultless.
The Third Party brought a motion seeking an order requiring the Defendants to pay their costs.  The Defendant argued that these should be the Plaintiff’s responsibility.  Madam Justice Beames disagreed and ordered that the Defendant pay the Third Party’s costs.  In reaching this typical result the Court provided the following reasons:

[7]             With respect to who ought to pay the third parties’ costs, the general rule is that a defendant who has unsuccessfully brought third party proceedings should be responsible for the third parties’ costs: Wilson v. INA Insurance Co. of Canada, [1998] B.C.J. No. 2174 (B.C.C.A.) at para. 37; Milina v. Bartsch, [1985] B.C.J. No. 2789 (S.C.) at para. 4.

[8]             As McLachlin J. (as she then was) said in Milina:

[5]        There may be situations where, on the peculiar facts of the case, fairness requires that an unsuccessful plaintiff bear a successful third party’s costs. Courts have held that such an order may be appropriate where one or more of the following situations was present:

1.         Where the main issue litigated was between the plaintiff and the third party…

2.         Where the third party was brought or kept in the matter by reason of the act or neglect of the plaintiff…

3.         Where the case involves a string of contracts in substantially the same terms for the sale of goods…

4.         Where the third party proceedings follow naturally and inevitably upon the institution of plaintiff’s action, in the sense that the defendant had no real alternative but to join the third party…

[9]             The defendant argues that this situation is very similar to that of Norman (Guardian ad litem of) v. McMillan, 2004 BCSC 384 in which the court found that the defendant fell within the exceptions in paragraphs 2 and 4 of Milina. In my view, the decision in Norman is distinguishable. There, the defendant was found completely blameless for the accident, which had initially been commenced when the plaintiff’s mother was his guardian ad litem. It had been her decision to commence the unsuccessful action against the defendant in the first instance. Certain steps that were taken in the action led the trial judge to conclude that defence counsel had a proper basis for alleging negligence on the part of the third party and the trial judge accepted that the third party, or her counsel, had employed tactics amounting to an attempt to make an end run around the defendant.

[10]         I am not satisfied that there is anything in this case which takes it out of the general rule. Consequently, the defendant will bear the third parties’ costs as assessed.

New Rules Caselaw Update: Costs and "Substantial Success" in the BC Supreme Court

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, Uncategorized. 51 Comments on New Rules Caselaw Update: Costs and "Substantial Success" in the BC Supreme Court


The New BC Supreme Court Rule 14-1(9) states that a successful party in a proceeding “must be awarded” costs unless the court otherwise orders.  The former Rule 57(9) dealt with this issue although it had slightly different wording.
Today reasons for judgement were released, for what I believe is the first time, dealing with and interpreting the new rule.
In today’s case (Aschenbrenner v. Yahemich) the Plaintiffs sued the Defendants for trespass, nuisance, defamation and other matters.  Ultimately they succeeded in some of their claims and were awarded just over $5,500 in total damages.  The Plaintiffs applied for an order of costs.  The Defendant opposed arguing that the costs award would be worth more than the awarded damages.
Ultimately Mr. Justice Metzger sided with the Plaintiffs and awarded them most of their costs.  In doing so the Court adopted authorities developed under the former rules.  Mr. Justice Metzger provided the following reasons discussing when a party is entitled to costs under Rule 14-1(9):

[12] Rule 14-1(9) of the Supreme Court Civil Rules states that:

(9)        Subject to subrule (12), costs of a proceeding must be awarded to the successful party unless the court otherwise orders.

[13] While the Rule itself does not include the term “substantial success” under the former Rule 57(9), it was held to be a necessary and sufficient condition for an award of costs under Rule 57(9) that success in the outcome of the trial be “substantial”: see Gold v. Gold, 82 B.C.L.R. (2d) 180, 32 B.C.A.C. 287.

[14] In Fotheringham v. Fotheringham, 2001 BCSC 1321 at para. 18, 108 A.C.W.S. (3d) 786, appeal to C.A. refused, 2002 BCCA 454, 172 B.C.A.C. 179, Bouck J. stated that a trial judge has absolute and unfettered discretion with respect to costs, but it ought not to be exercised against a successful party except for some good reason in connection with the case.

[15] Mr. Justice Bouck canvassed the factors to be considered with respect to Rule 57(9), and at para. 45 stated:

[45] Gold now seems to say that substantial success in an action should be decided by the trial judge looking at the various matters in dispute and weighing their relative importance. The words “substantial success” are not defined. For want of a better measure, since success, a passing grade, is around 50% or better, substantial success is about 75% or better. That does not mean a court must descend into a meticulous mathematical examination of the matters in dispute and assign a percentage to each matter. Rather, it is meant to serve as a rough and ready guide when looked at all the disputed matters globally.

[16] Mr. Justice Bouck then sets out a four step inquiry to determine whether or not to award costs after a trial at para. 46:

1.         First, by focusing on the “matters in dispute” at the trial. These may or may not include “issues” explicitly mentioned in the pleadings.

2.         Second, by assessing the weight or importance of those “matters” to the parties.

3.         Third, by doing a global determination with respect to all the matters in dispute and determining which party “substantially succeeded,” overall and therefore won the event.

4.         Fourth, where one party “substantially succeeded,” a consideration of whether there are reasons to “otherwise order” that the winning party be deprived of his or her costs and each side then bear their own costs.

(See also: Citta Construction v. Elizabeth Lane Holdings Ltd., 2004 BCSC 280, 129 A.C.W.S. (3d) 46 at para. 7.)

[17] Substantial success is not determined by counting up the number of issues and allocating success on each, or by comparing the dollar amounts, but by assessing success in the major issues of substance (Cohen v. Cohen, 1995 Carswell 608, 15 R.F.L. (4th) 84 (B.C.C.A.) at para. 4; Reilly v. Reilly, [1996] B.C.J. No. 1244 (S.C.); Rattenbury v. Rattenbury, 2001 BCSC 593, [2001] B.C.J. No. 889 at paras. 22-24, 33). Substantial success means success on 75% of the matters globally taking into account the weight of the issues and their importance to the parties. A court should compare the pleadings and the submissions with the actual results obtained by the parties (Rattenbury at para. 24.).

[18] In cases where one party achieves substantial success, the courts may award a portion of the substantially successful party’s costs. For example, in Newstone v. Newstone, [1994] B.C.J. No. 139, 2 R.F.L. (4th) 129 (C.A.), an award of one-half costs to a party was upheld where “[s]uccess, if it could be called that, lay more with the wife than with the husband …” One-half costs were also upheld in Rolls v. Rolls, [1996] B.C.J. No. 292, 20 R.F.L. (4th) 232 (C.A.), on the ground that such an award would not create an imbalanced judgment as much as would a full award. InCohen v. Cohen, a spouse was awarded 75% of her costs after success on her reapportionment claim, which was the largest and most time-consuming issue.

[19] The four step test identified by Bouck J. applies not only to matrimonial cases, but also to all types of cases where Rule 14-1(10) has application (Chaster (Guardian ad litem of) v. LeBlanc, 2008 BCSC 47, 164 A.C.W.S. (3d) 43 at para. 34).

[20] Where success is divided such that there is no substantially successful party, the parties may have to bear their own costs (Mari v. Mari, 2001 BCSC 1848, [2001] B.C.J. No. 2979).

[21] On a global view of the outcome of this litigation I find that the plaintiffs were substantially successful.

Defendant Punished With Costs Award for Relying on "Advocate" Expert Witness

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


Dr. Hymie Davis is a psychiatrist who has been frequently retained by ICBC to provide expert opinions as to the extent of Plaintiff’s accident related injuries.  (You can click here to access my previous posts setting out the billings of Dr. Davis and other experts often retained by ICBC).  In a judgement released last week, the BC Supreme Court harshly criticized Dr. Davis and took the unusual step of punishing the Defendant, (who was insured with ICBC), for relying on him at trial.
In last week’s case (Jayetileke v. Blake) the Plaintiff was injured in a BC motor vehicle collision.  She sued for damages.  Prior to trial ICBC made a formal settlement offer of $122,500.  The Plaintiff rejected this offer and went to trial.  She was ultimately awarded about $9,000 less than the settlement offer by the trial judge.
Normally, in these circumstances, ICBC would be entitled to their costs and possibly double costs from the time of their offer onward.  Mr. Justice Dley, however, refused to follow this usual course finding that not only should the Defendant not be awarded costs, but they should pay the Plaintiff costs.  The reason for this departure was a finding that Dr. Davis was “nothing more than an advocate thinly disguised in the cloak of an expert” and he should not have been relied on by the defence at trial.
Mr. Justice Dley provided the following damaging criticism of Dr. Davis as an expert witness and warning to lawyers who  intend to rely on experts who have a history of crossing the line into advocacy:

[35] Dr. Davis had a history before the courts where his evidence was rejected and his objectivity called into question: Grewal v. Brar et al, 2004 BCSC 1157, [2004] B.C.J. No. 1819; Gosal v. Singh, 2009 BCSC 1471, [2009] B.C.J. No. 2131; Kelly v. Sanmugathas, 2009 BCSC 958, [2009] B.C.J. No. 1413; and Smusz v. Wolfe Chevrolet, 2010 BCSC 82, [2010] B.C.J. No. 114.

[36] A witness may have a poor day in court – that does not mean the witness was dishonest or forever unreliable. However, Dr. Davis had displayed an alarming inability to appreciate his role as an expert and the accompanying privilege to provide opinion evidence.

[37] The defence was alive to his propensity to abuse the role of an expert. His reputation would have been known from the cited decisions. Plaintiff’s counsel succinctly set out the concerns about Dr. Davis in a letter dated January 29, 2010, which stated:

1.         Although he may have once been a qualified expert in psychiatry and able to give opinion evidence in court, we suggest he no longer is properly qualified to give opinion evidence. We will suggest that he is no longer aware of his duty to assist the court and in reality he is an advocate for ICBC. Additionally, we will submit that he has been so consistently discredited by the courts of this Province that he is incapable of being qualified as an expert;

2.         His report is replete with advocacy. The report is an attempt [to] neutralize any material/opinions which support the plaintiff’s claim rather than providing an objective medical opinion;

3.         His report contains many opinions and arguments that are beyond his expertise; and

4.         The information apparently gleaned from the plaintiff is inaccurate and incomplete and coloured to advance his position.

[38] In spite of the concerns that the Courts have expressed, the defence nonetheless proffered Dr. Davis as an expert in opposition to the plaintiff’s complaints of depression and anxiety. My assessment of Dr. Davis was as follows (oral reasons May 13, 2010):

[43]      Dr. Hymie Davis, a psychiatrist, examined Ms. Jayetileke on January 12, 2010 at the request of the defence. I find his evidence to be unreliable. I give it no weight for the following reasons.

[44]      Dr. Davis was an advocate. He was argumentative, defensive, non-responsive, and prone to rambling discourses that were not relevant to the questions posed in cross-examination.

[45]      Dr. Davis was asked to leave the courtroom so that counsel could argue about questions to be put to him. Dr. Davis was seen peeking into the courtroom and listening to the discussion. He was again asked to leave. In spite of these instructions given to him, Dr. Davis hovered within hearing distance and, on four occasions, stuck his head into the courtroom to hear what was occurring.

[46]      Dr. Davis conceded that without his notes, he would not be able to recall the discussion with Ms. Jayetileke. He relied on his notes to prepare his report.

[47] Dr. Davis had noted that Ms. Jayetileke awakened once or twice a week and that this was in some measure related to the accident-related symptoms. He was adamant Ms. Jayetileke had not said that she awakened once or twice a night. He said that his notes would reflect what Ms. Jayetileke had told him.

[48]      His notes referred to Ms. Jayetileke awakening once or twice but did not specify whether that was nightly or weekly. Nonetheless, Dr. Davis tried to point out other references in his notes that meant a weekly occurrence. Those references did not strengthen his evidence. They simply confirmed the unreliability of his testimony.

[49]      Dr. Smith had commented about how important it was for the history-taking to be done in a setting where the patient was comfortable and at ease with the interviewer. Dr. Davis’s demeanour would not lend itself to Ms. Jayetileke being at ease in his presence so that an effective and accurate history could have been taken. Ms. Jayetileke was under the impression that Dr. Davis did not take things seriously. I accept her view of the interview and prefer her evidence to that of Dr. Davis.

[39] For a trial to be fair, the Court must allow each party to put its best case forward. Where a party seeks to advance its position with reckless abandon seeking only the ultimate goal of victory and using questionable evidence along the way, that party risks sanctions in the form of costs penalties. Where the conduct is reprehensible and deserving of reproof and rebuke, the penalty is special costs. “Costs considerations are meant to guide counsel and litigants in the choices and strategies they pursue in litigation”: Karpodinis v. Kantas, 2006 BCCA 400, [2006] B.C.J. No. 2074 at para. 4.

[40] In this case and against the backdrop of previous judicial comment, the defence tendered Dr. Davis. He was nothing more than an advocate thinly disguised in the cloak of an expert. That is conduct deserving of rebuke and from which the Court disassociates itself.

[41] Dr. Davis attempted to inject levity to the proceedings when he was introduced to the Court – his reference to scotch can only be taken as an attempt to be humorous. However, these are serious and solemn proceedings and should be treated as such. His opening comments were unnecessary and unhelpful.

[42] Dr. Davis’ refusal to remove himself from earshot of the Court proceedings despite repeated requests was reprehensible. His conduct simply confirmed a lack of respect for Court proceedings.

[43] Under these circumstances, special costs are to be awarded against the defendant.

[44] The special costs will be the equivalent of the costs of the entire trial. The defendant will be deprived of any costs that it might otherwise have been entitled to as result of the offer to settle.

[45] The plaintiff is awarded costs as if there had been no offer to settle made. The defendant shall receive no costs.

[46] The plaintiff shall receive costs of this application.

New Rules of Court Update: Discontinued Lawsuits and Third Party Costs

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9, Uncategorized. 58 Comments on New Rules of Court Update: Discontinued Lawsuits and Third Party Costs


Reasons for judgement were released today by the BC Supreme Court, Chilliwack Registry, interpreting and applying Rule 9-8(5) for what I believe is the first time.  (It’s worth pointing out, however, that this rule reads almost identically to the former Rule 36(5)).  This rule deals with the entitlement of a Third Party to costs when a Plaintiff discontinues a lawsuit.
In today’s case (Patterson v. Williams) the Plaintiff sued two Defendants for personal injuries sustained when a dog knocked her over.  The Defendants denied fault and issued Third Party Proceedings against another dog walker seeking contribution and indemnity.
Ultimately the Plaintiff settled the claim, signed a release in favour of the Defendants and discontinued the lawsuit.  The Third Party then brought a motion asking that the Defendants pay the Third Party’s costs.  The Third Party relied on Rule 9-8(5) which reads as follows:
(5)  If a plaintiff discontinues the whole or any part of an action in which a person has been joined as a third party, the third party, if the discontinuance disposes of the claim against the third party, is entitled to costs and may apply to the court for a direction as to who should pay them.
Mr. Justice Sigurdson dismissed the motion finding that a discontinued lawsuit does not automatically dispose of Defendant claims against a Third Party.  The Court provided the following reasons:

[11]         The third party says that the notice of discontinuance disposes of the third party claim, as it was for contribution and indemnity only and did not include an independent claim. This was so, in the third party’s submission, because the specific wording of the third party notice made the third party claim conditional both on the plaintiff not being contributorily negligent and on the defendant being found liable. According to the third party, these conditions cannot now be satisfied because of the discontinuance.  Mr. Nossal also argues that there is no ongoing claim against the third party because the terms of the Release are on so-called “B.C. Ferry Agreement terms” (British Columbia Ferry Corp. et. al. v. T&N plc. et .al. (1993), 86 B.C.L.R. (2d) 353 (S.C.); (1995), 16 B.C.L.R. (3d) 115 (C.A.)) that prevent recovery from a third party.

[12]         I think that this application for costs must fail.  While the Release may limit the liability of the defendants and prevent successful third party proceedings against them, the notice of discontinuance itself does not prevent the defendants from continuing third party proceedings against Ms. Parker.

[13]         I do not think it can be said that the filing of the notice of discontinuance by the plaintiff disposes of the claim against the third party by the defendants.

[14]         The claim for contribution is a substantive right that continues to exist notwithstanding a settlement: see A.R. (Al) Smith Ltd. v. Turner, [1984] B.C.J. No. 3107, [1985] 2 W.W.R. 424 (B.C. Co. Ct.), and Canada v. Foundation Co. of Canada, [1980] 1 S.C.R. 695.

[15]         Moreover, I do not think that the precise terms of the third party notice can be determinative of this application, as the defendants are at liberty to apply to amend the terms of the third party notice.

[16]         Even if the terms of the Release do prevent the defendant from continuing third party proceedings against the third party, which I question, that is a matter of the interpretation of the Release, not something that flows from the filing by the plaintiff of the notice of discontinuance itself.

[17]         Accordingly, the application by the third party for costs is dismissed, with costs.

Defendant Refused Costs at Trial For Failing to Consent to Small Claims Court Transfer

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, BCSC Civil Rule 9, Uncategorized.


Reasons for judgement were released today addressing whether a Defendant who beat a formal settlement offer should be awarded costs.
In today’s case (Cue v. Breitkruez) the Plaintiff was involved in a rear-end collision.  He sued the rear motorist for damages.  Prior to trial the Defendant made a formal settlement offer for $1.  With liability being hotly contested the Plaintiff proposed that the case be transferred to Small Claims Court.  The Defendant refused to consent stating that “such a transfer would result in greater delay“.
At trial the Plaintiff’s case was dismissed with a finding that the Plaintiff was responsible for the collision.  (You can click here to read my summary of the trial judgement).  The Defendant then applied to be awarded double costs pursuant to Rule 9-1(5) because they beat their formal offer at trial.
Mr. Justice Smith dismissed the application noting that since Rule 14-1(10) generally restricts Plaintiff’s awarded an amount within the small claims court jurisdiction from being awarded trial costs that the Defendant should be refused costs for not agreeing to have the case heard in Provincial Court.  Specifically Mr. Justice Smith noted as follows:

7]             The matter remained in this court subject to an agreement to still limit the claim to what could be awarded in Provincial Court. Had my liability decision been different and the matter proceeded to an assessment of damages, Rule 14-1(10) would have been a bar to an award of any costs, other than disbursements, in favour of the plaintiff.  In my view, fairness requires that the same limitation apply to the successful defendant, particularly as the defendant did not agree to the proposed transfer to Provincial Court.

[8]             I therefore decline to award any costs to the defendant, other than disbursements.  There is therefore no need to consider the offer to settle because there are no costs to double.