Tag: Lee v. Jarvie

BC Supreme Court Continues to Have Broad Discretion of Costs Awards Following Trial

Reasons for judgement were released today by the BC Court of Appeal addressing the discretion of judges in making costs awards following trial under the new Rules of Court.
In today’s case (Lee v. Jarvie) the Plaintiff was involved in a rear-end collision in 2004.  Fault for the crash was admitted.  At trial the Plaintiff sought substantial damages in the range of $800,000.  Much of the Plaintiff’s claim was rejected at trial but damages of just over $50,000 were assessed.
Following trial the Court awarded each party 50% of their costs to be set off against one another and denied many of the Plaintiff’s disbursements.  The Plaintiff appealed arguing the Court did not have the authority to make such a costs order under the new rules of Court.  The BC Court of Appeal disagreed and found that a trial judge’s discretion with respect to costs is “at least as broad” as it was under the former rules.  In reaching this decision the Court provided the following reasons:
[37]        Interpreting Rule 14-1(15) as only allowing costs to be awarded in respect of specific procedures would run afoul of the principle that Newbury J.A. identified in the opening of her reasons for judgment inGreater Vancouver Regional District v. British Columbia (Attorney General), 2011 BCCA 345:
[1]        One of the well-known rules that guide Canadian judges in the interpretation of statutes is that wherever possible, the court should strive to give meaning and effect to every word used in an enactment. As stated in Maxwell on the Interpretation of Statutes (12th ed., 1969), “It is a principle of statutory interpretation that every word of a statute must be given meaning: ‘A construction which would leave without effect any part of the language of a statute will normally be rejected.” (See also Communities Economic Development Fund v. Canadian Pickles Corp. [1991] 3 S.C.R. 388 at 408; R. v. Kelly [1992] 2 S.C.R. 170 at 188; Hosseini v. Oreck Chernoff 1999 BCCA 386, 65 B.C.L.R. (3d) 182, at para. 27.).
[38]        The words “application” and “step” cover all procedural fragments of a proceeding. If “matter” were intended to be confined to a procedural event in litigation, it would cover no ground not already covered by “application” and “step”. I am therefore not persuaded that a “matter” must be a discrete procedure.
[39]        In my view, the canons of construction referred to by the plaintiff do not cast doubt on the conclusion that Rule 14-1(15) allows a judge to award costs in respect of a discrete issue in litigation.
[40]        I am satisfied that the discretion to award costs with respect to an issue in a proceeding is at least as broad under Rule 14-1(15) as it was under former Rule 57(15). Under that rule, the discretion was governed by the principles discussed by Finch C.J.B.C. in Sutherland v. Canada (Attorney General), 2008 BCCA 27 at paras. 30 and 31:
[30]      British Columbia v. Worthington (Canada) Inc. is the leading case with respect to the application of Rule 57(15). It affirms that under Rule 57(15) the Court has full power to determine by whom the costs related to a particular issue are to be paid. As Esson J.A. states in Worthington, the discretion of trial judges under Rule 57(15) is very broad, and must be exercised judicially, not arbitrarily or capriciously. There must be circumstances connected with the case which render it manifestly fair and just to apportion costs.
[31]      The test for the apportionment of costs under Rule 57(15) can be set out as follows:
(1) the party seeking apportionment must establish that there are separate and discrete issues upon which the ultimately unsuccessful party succeeded at trial;
(2) there must be a basis on which the trial judge can identify the time attributable to the trial of these separate issues;
(3) it must be shown that apportionment would effect a just result.
[41]        The trial judge explicitly addressed each of the three factors in Sutherland, and I am substantially in agreement with his analysis.
[42]        The issues upon which he awarded costs to the defendants were distinct issues in the litigation. While I acknowledge the appellant’s argument that there was some minor overlap between evidence going to general damages and evidence going to loss of income, this did not prevent the issues from being “separate and discrete” issues in the litigation. They were appropriately compartmentalized by the judge.
[43]        The judge identified the time attributable to the separate issues at trial at paragraphs 68-71 of his costs reasons. There is no basis for interfering with his findings in those paragraphs.
[44]        Finally, on the issue of whether the costs award is a “just result”, the trial judge comprehensively dealt with problems with the evidence in his trial judgment. He further dealt with the factors that led to the length of the trial in his costs judgment. The trial judge identified the factors that led him to find his costs award to be a just result. The reasons are cogent, and I would not interfere with his decision.

Plaintiff Stripped of Significant Costs and Disbursements for Pursuing "Inflated, Exaggerated or Unrealistic" Claims


(Update January 16,2013 – the Court of Appeal granted leave to appeal the below costs award.  Once the final decision is released I will further update this post).
(Update December 10, 2013 – today the BC Court of Appeal dismissed the appeal of the below decision)
I have spent much time highlighting costs consequences plaintiff’s face under BC’s loser pays system and perhaps even more time discussing the further costs consequences that can flow from failing to beat a defence formal settlement offer at trial.
A less judicially considered area of the law relates to costs consequences where a plaintiff is awarded damages at trial far below the recovery sought where no defence formal settlement offer was in place.  The starting point in such cases is that a Plaintiff is generally entitled to costs provided the awarded damages exceed $25,000.  The court retains a discretion, however, to move away from this default position in “relatively rare cases”.  Such a result was demonstrated in reasons for judgement released this week by the BC Supreme Court, New Westminster Registry.
In this week’s case (Lee v. Jarvie) the Plaintiff was involved in a rear-end collision in 2004.  Fault for the crash was admitted.  At trial the Plaintiff sought substantial damages in the range of $800,000.  Much of the Plaintiff’s claim was rejected at trial but damages of just over $50,000 were assessed.
The Defendant apparently did not provide a pre-trial formal settlement offer.  As a result the default position of Rule 14-1(9) was triggered with the Plaintiff presumably being entitled to costs.  The Defendant argued that the Defendant was largely the victor at trial, at least insofar as the most substantial alleged damages were concerned, and that the Court should exercise its discretion to apportion costs pursuant to Rule 14-1(15).  Mr. Justice Gaul agreed it was appropriate to do so and stripped the Plaintiff of significant costs and disbursements.  In doing so the Court provided the following reasons:
[12]         The issues of apportioning costs between parties under Rule 57(15) of the former Rules of Court was addressed and considered in  British Columbia v. Worthington (Canada) Inc. et al(1988), 32 C.P.C. (2d) 166, 29 B.C.L.R. (2d) 145 (C.A) and more recently in Sutherland v. Canada (Attorney General), 2008 BCCA 27. From these cases, I have drawn the following guiding principles relating to the apportionment of costs:
1)    Applications to apportion costs should be the exception and not the norm in civil litigation, and they should be limited to “relatively rare cases”.
2)    The power to apportion costs is a discretionary one that “must be exercised judicially, not arbitrarily or capriciously”.
3)    The exercise of discretion must be connected to circumstances of the particular case “which render it manifestly fair and just to apportion costs”.
[13]         In addition to these principles, I am also guided by the test Finch, C.J.B.C. articulated in Sutherland at para. 31:
[31]      The test for the apportionment of costs under Rule 57(15) can be set out as follows:
            (1)        the party seeking apportionment must establish that there are separate and discrete issues upon which the ultimately unsuccessful party succeeded at trial;
            (2)        there must be a basis on which the trial judge can identify the time attributable to the trial of these separate issues;
            (3)        it must be shown that apportionment would effect a just result…
[38]         The apparent divergence of judicial approaches to the question of apportioning costs in personal injury cases appears to hinge on the determination of the degree of success the plaintiff enjoyed at trial and whether the trial was unnecessarily prolonged by the pursuit of inflated or unrealistic claims. Where the court finds the plaintiff was substantially successful at trial and there was no pursuit of exaggerated claims, then apportionment of costs will less likely be granted. However, where the court determines there was divided success, or finds there was a distinguishable portion of the plaintiff’s claim that was unrealistically pursued resulting in a more protracted proceeding, then subject to the guiding principles articulated in Worthington and Sutherland, apportionment of costs is a legitimate consideration…
[82]         In my opinion, the particular circumstances of this case permit the court to consider the plaintiff’s claims for loss of past opportunity to earn income, loss of future earning capacity and cost of future care as separate and discrete issues. Moreover, there is a clear basis upon which to calculate the amount of trial time, including argument, that was devoted to these issues. Finally, apportionment of costs would, given the divided success at trial and the plaintiff’s pursuit of inflated, exaggerated or unrealistic claims, affect a just result between the parties. I therefore find the case at bar falls into that category of “relatively rare cases” where apportionment of costs is appropriate.
[83]         What was to have been, and in my respectful view should have been, a 5?day trial, practically tripled in length, and much of that is attributable to the plaintiff and the nature of the evidence he led at trial. I rejected a significant portion of the plaintiff’s testimony. He was a poor historian of the facts and was at times deliberately evasive in answering questions. As I noted at para. 46 of my Reasons for Judgment, but for the detailed and probing cross-examination of the plaintiff, “…the court would have been left with an inaccurate impression and understanding of Mr. Lee’s situation and condition.” There were also significant deficiencies in the evidence of the plaintiff’s expert witnesses, Mr. Worthington-White, Ms. Quastel, Mr. Benning, Dr. Lee, Dr. Kokan and Dr. Hershler that only came to light during the course of extensive cross-examination.
[84]         The facts in the case at bar, as they relate to costs are, in my view, similar to those found in Bailey, Plackova, Berston, Shearsmith and Heppner, in that an inordinate and unreasonable amount of trial time was consumed by the plaintiff’s pursuit of exaggerated claims that were eventually rejected. The length of the trial was also made more difficult and prolonged as a result of the plaintiff’s credibility issues and his failure to fully and frankly disclose relevant information to his medical experts.

Cross Examination Beats Up RCMP Officer's Injury Claim


As previously discussed, cross examination is one of the most important tools in a trial lawyer’s arsenal.  This tool can be used both during examination for discovery and trial.  Cross examination can be used to explore and weaken an opponents case.  Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, harshly criticizing an RCMP officer and largely rejecting his injury claim based on evidence elicited during an extensive cross examination.
In today’s case (Lee v. Jarvie) the Plaintiff was involved in a rear-end collision in 2004.  Fault for the crash was admitted.  The trial focused on the value of the Plaintiff’s claim.  The Plaintiff was in the midst of applying for the RCMP at the time of the crash.  He was injured but fortunately was able to complete his application and training and went on to be successfully employed with the police force.
ICBC accepted that the Plaintiff was injured but argued that his injury claim was exaggerated challenging “the authenticity of (the Plaintiff’s) claim“.  Mr. Justice Gaul largely accepted this argument and dismissed a significant portion of the claim.  The below are some of the critical words the Court had of the Plaintiff:
[46] Mr. Lee was vigorously cross-examined by counsel for the defendants. By “vigorous” I do not mean the questioning was improper or disrespectful of the witness. I find the extensive cross-examination of Mr. Lee successfully revealed a number of significant and illuminating facts that, but for their disclosure, the court would have been left with an inaccurate impression and understanding of Mr. Lee’s situation and condition…
[71] In addition to eliciting important facts that have placed Mr. Lee’s claim in a more fulsome context, counsel for the defendants was also able to expose a number of contradictions and inconsistencies in Mr. Lee’s evidence, of which I will address but a few…
[81] While I am hesitant to find Mr. Lee fabricated his evidence on this point, I do find him to be an unreliable and inaccurate historian with respect to the amount and frequency of medication he has been taking…
[86] In great measure I agree with the submission of the defence that Mr. Lee’s evidence shifted during the course of his testimony and at times contradicted what he had said previously at his examination for discovery. On occasion I also found myself simply disbelieving Mr. Lee….(some of his evidence) stretches the boundaries of belief beyond their limits…
[87] In general, I found Mr. Lee to be less than forthright during his evidence and on more than one occasion I found him to be deliberately evasive in answering the question asked of him…
[89] It was only on account of detailed and probing cross-examination that a number of important and salient facts relating to Mr. Lee’s claim were disclosed or clarified. These details placed Mr. Lee’s claim in a markedly different light to the one based solely on what he said in his examination-in-chief. This, in conjunction with the inconsistencies or contradictions that were exposed in Mr. Lee’s evidence, compels me to approach his evidence with caution and scepticism. In general, I am not satisfied with Mr. Lee’s evidence. Unless I have indicated otherwise in these reasons, where there is a conflict between Mr. Lee’s evidence and that of another witness, I have given greater weight to the evidence of the other witness.
Further to my previous posts on credibility, cases such as today’s are worth reviewing in full to get a sense of the types of factors trial judges take into consideration in weighing the evidence of a party.  Today’s case in particular is a good introduction to cross examination in injury claims because the Court reproduces extensive portions of the Plaintiff’s cross examination and explains the damaging effect this had on his credibility.

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ERIK
MAGRAKEN

Personal Injury Lawyer

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

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