A short but interesting exchange can be found at the end of reasons for judgement recently published by the BC Supreme Court, Chilliwack Registry, discussing loser pays costs and a Plaintiff’s financial circumstances.
In the recent case (Hunstad v. Cormier) the Plaintiff was injured when her bicycle was involved in a collision with the Defendant’s vehicle. She sued for damages but her claim was dismissed at trial. The Defendant sought costs but the Court declined to award these given the Plaintiff’s financial circumstances. This is an interesting development because while the financial position of parties can be considered if a formal offer has been made, it has been held that it is an irrelevant consideration in the normal course. The below brief exchange, while arguably not conclusive as it is not a final order, can arguably be used to open the door to financial hardship as a factor when considering BC’s ‘loser pays’ costs consequences:
 MR. KENT-SNOWSELL: Costs, My Lord?  THE COURT: I am not going to order costs because of Ms. Hunstad’s financial situation. If you want to make some submissions on that, I will consider it, but I don’t think they are appropriate in the circumstances.  MR. KENT-SNOWSELL: I will seek instructions.  THE COURT: Thank you.
While the BC Supreme Court Rules generally deprive a Plaintiff of costs who bring an action to trial that could have been brought in small claims court the BC Court of Appeal clarified that having ‘sufficient reason’ to sue in the BC Supreme Court is not limited to quantum of damages alone. Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, considering some such other factors.
In this week’s case (Bae v. Vasquez) the Plaintiff was injured in a 2010 rear-end collision. The Plaintiff suffered relatively minor soft tissue injuries. She sued in the BC Supreme Court and was awarded damages of just over $12,000. ICBC argued she should not be awarded costs as the action could have been brought in small claims court. Madam Justice Baker disagreed finding that ICBC’s initial denial of liability, LVI Defence and the Plaintiff’s language barriers were all reasons justifying bringing the action in the Supreme Court. In awarding costs the Court provided the following reasons:  I am satisfied that this case had neither legal nor factual complexities that made the Supreme Court a necessary venue. I have already referred to the fact that a jury trial was not an option in any case; and there will be no need to enforce the judgment outside of the province.  In some cases, the fact that the plaintiff had difficulty with the English language; and therefore would have difficulty pursuing the claim without the assistance of counsel, has been held to be sufficient reason to proceed in Supreme Court, where the possibility of recovering costs makes it easier for a plaintiff to find counsel willing to act.  Plaintiff’s counsel submits also that in this case, the defendant denied liability for the accident in the Response to Civil Claim. Plaintiff’s counsel has advised the Court that prior to the action being commenced, the defendant’s insurer had indicated: …that due to the “minimal nature of the impact forces involved in the collision”…the Plaintiff had not sustained any “compensable injury”.  The defendant did not admit liability until January 30, 2012 and even at that date, continued to maintain that the plaintiff had suffered no injury, loss, damage or expense as a result of the accident.  Plaintiff’s counsel submits that because the defendant was maintaining that the plaintiff’s negligence was the sole cause of the accident, an examination for discovery of the defendant was necessary and that procedure would not have been available to the plaintiff in Provincial Court. Counsel pointed out that at the plaintiff’s examination for discovery in July 2011, she was asked questions pertaining to liability, including whether she had consumed alcohol or drugs prior to the accident; whether she was familiar with the location where the accident happened; whether her vehicle had been properly maintained and was in proper working order and whether she had a valid driver’s licence at the time.  It was not until August 18, 2011 – after both the plaintiff and defendant had been examined for discovery – that defendant’s counsel wrote to plaintiff’s counsel suggesting that the action should be heard in Provincial Court and seeking the plaintiff’s consent to transfer the action to that court. Plaintiff’s counsel replied on September 21, 2011 indicating that if the trial could be heard in Provincial Court in the same time frame as the trial date set in Supreme Court – March 2012 – then the plaintiff would consider the request for a transfer. Defendant’s counsel was asked to make inquiries to determine when the trial could be heard if transferred to Provincial Court. No reply was received.  Ms. Bae testified at trial with the assistance of an interpreter. She had been examined for discovery without an interpreter and at trial indicated she had misunderstood some of the questions asked of her. Ms. Bae is not an assertive individual and I am satisfied she would have had considerable difficulty pursuing this action without the assistance of counsel. Of course, parties may be and often are represented by counsel in Provincial Court, but the unavailability of costs makes it more difficult to find representation. There was a denial of liability in circumstances where normally liability would be admitted and it was reasonable for the plaintiff to wish to examine the defendant for discovery on the issue of liability – a procedure unavailable in Provincial Court.  Taking all of these factors into account, I am of the view that there was sufficient reason for the plaintiff to bring her action in Supreme Court. I award the plaintiff costs, the costs to be governed by Rule 15-1(15).
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:  . 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.  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.  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.  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.
In an illustration of a seldom used power, reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, ordering a Plaintiff’s lawyer to pay costs to Defendants personally pursuant to Rule 14-1(33) after bringing an unsuccessful application to renew a lawsuit.
In this week’s case (Drover v. BCE Inc.,) the Plaintiff sued various Defendants challenging system access fees collected by cellular companies. It was a proposed class action. The lawsuit was filed in 2004 and various Defendants were served the lawsuit via fax. Some Defendants questioned the propriety of fax service to which the Plaintiff’s lawyer responded “we believe the Court will accept service by Facsimile“.
No steps were taken to perfect service until 2012 when the matter was brought before the Court with the Plaintiff asking the Court to permit “the plaintiffs to serve the statement of claim”. The Court refused noting that the Plaintiff’s lawyer “did not bother to consider the relief that might be available under the Rules. Instead, he seemed to be content with putting a general concept in his application in the hope of attracting the court’s sympathy.” The Court found this was “unacceptable” and dismissed the application after canvassing the factors under Rule 3-2(1).
Mr. Justice Weatherill awarded multiple Defendants costs and further ordered that the Plaintiff’s lawyer personally pay these. In doing so the Court provided the following reasons:  In my view, this is an exceptional case. The conduct of counsel for the plaintiffs has caused costs to be wasted through delay and neglect. Plaintiffs’ counsel neglected this action for over 8 years. When he got around to dealing with it by bringing this application, he failed to set out the proper relief. Furthermore, the application was not supported by any evidence explaining either the delay or the failure to comply with the Rules regarding the need for an endorsement and proper service. Moreover, the application was brought against defendants against whom there was no basis for the order(s) sought. To say that this was and has from the outset been a shoddy piece of counsel work would be an understatement.  I am ordering that E.F. Anthony Merchant, Q.C. be personally liable for the foregoing awards of costs, payable forthwith.
Parties to a BC Supreme Court lawsuit can be forced to attend an examination for discovery set up by opposing litigants. Failure to attend can have a variety of consequences. Demonstrating one such consequence in action, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, punishing a non-attending part with increased costs.
In the recent case (Stanikzai v. Bola) the Defendant was found 75% at fault for a motor vehicle collision and was ordered to pay damages of just over $189,000. Prior to trial the Defendant failed to appear at an examination for discovery. Mr. Justice Smith found this behaviour was “reprehensible” and ordered that the defendant pay post trial costs at a level greater than they otherwise would have been. In reaching this decision the Court provided the following reasons:  Parties to civil litigation are required by R. 7-2(1) of the Supreme Court Civil Rules, to make themselves available for examinations for discovery. It is not something a litigant can choose to do or not do on the basis of her own convenience. If Ms. Bola was unable to attend the examination on the day it was set, her obligation was to notify her counsel and discuss alternate dates. Instead, she simply failed to show up.  I also find it difficult to believe that she had no knowledge of the false information her husband was apparently providing to defence counsel when a second discovery was requested. Ms. Bola showed a complete and unacceptable disregard for her duties under the law. I stress this was not the fault of defence counsel, who attempted to get her cooperation…  I find that the defendant’s refusal to appear at discovery meets the definition of “reprehensible conduct” and I would not hesitate to award special costs if I thought that conduct had affected the outcome of the trial. But, in the specific circumstances of this case, I find that there is another, more proportionate rebuke available.  Under normal circumstances the plaintiff, having been found 25 per cent responsible for the accident, would recover only 75 per cent of his costs. This arises from s. 3(1) of the Negligence Act, RSBC 1996, c 333: 3 (1) Unless the court otherwise directs, the liability for costs of the parties to every action is in the same proportion as their respective liability to make good the damage or loss.  Although payment of costs in proportion to the degree of liability is the default rule, the court has discretion to depart from it. That departure must be for reasons connected with the case, with the principle consideration being whether application of the usual rule will result in an injustice: Moses v Kim, 2009 BCCA 82 at para 70.  In these circumstances, I find that the interest of justice can best be served by depriving the defendants of the reduction in costs that they would otherwise benefit from and I award the plaintiff the full costs of this action.
Reasons for judgement were released this week by the BC Supreme Court, Cranbrook Registry, highlighting the Court’s discretion with respect to costs consequences following a trial in which a pre-trial formal settlement offer was made.
In this week’s case (Russell v. Parks) the Plaintiff was injured when struck by the Defendant’s vehicle while walking in a parking lot. Liability was at issue and ultimately the Plaintiff was found 2/3 responsible for the incident. After factoring this split in the Plaintiff’s assessed damages came to $28,305. Prior to trial ICBC paid more than this amount in Part 7 benefits which are deductible from the damage assessment pursuant to section 83 of the Insurance (Vehicle) Act.
Despite proving partial liability against the Defendant and further proving damages, the Plaintiff’s claim was ultimately dismissed due to the above statutory deduction with Mr. Justice Abrioux providing the following reasons:  In my view, this reasoning applies to this case, where the application of section 83(5) of the Act results in there being an award of $0 to the plaintiff. Accordingly, the action is dismissed and this should be reflected in the order.
Prior to trial ICBC made a formal settlement offer for $25,000 of ‘new money’. The Court needed to consider what costs consequences ought to flow in these circumstances. In awarding the Plaintiff 75% of pre-offer costs and having each party bear their own post offer costs the Court provided the following reasons:  The dismissal of the action does not necessarily mean the plaintiff is disentitled to any costs: see McElroy v. Embleton, at para. 10.  The first question is, putting aside for the moment the issue of Part 7 benefits paid, how should costs be apportioned from the time of the commencement of the action until April 13, 2012? At trial, I found the defendant to be one-third liable for the plaintiff’s loss. ..  Having considered these authorities, and subject to my findings below regarding the Part 7 benefits, I find the plaintiff is entitled to 75% of his costs up to the date of the settlement offer of April 13, 2012. This reflects the fact that although the amount of time spent on determining liability at the trial was not “minimal”, more time was spent regarding the assessment of damages. This was shown in the medical evidence led, the reports which were obtained and the like. It would be unjust not to exercise my discretion to depart from the default rule referred to in paragraph 26 above in these circumstances.  The next issue is whether the payment of the Part 7 benefits should affect the award of costs…  This is not an appropriate case, in my view, to conclude as is submitted by the defendant that the plaintiff should not have proceeded to trial. It was not readily foreseeable to either party what the result was going to be with respect to liability or the quantum of damages. In so far as liability is concerned, I noted at para. 31 of my reasons for judgment that cases dealing with competing duties of pedestrians and operators of motor vehicles are highly fact specific.  Taking all of these factors into account, I conclude that for the time period up to the defendant’s settlement offer of April 13, 2012, the plaintiff shall be awarded 75% of his costs and disbursements…  What is the effect of the settlement offer made by the defendant for $25,000 of “New Money” as defined in counsel’s correspondence dated April 13, 2012? The New Money was in addition to the Part 7 benefits already received by the plaintiff. No objection was taken by the plaintiff to the form of the defendant’s offer to settle…  Upon considering the factors in R. 9-1(6), I do not accept the defendant’s submission that double costs are appropriate. There is no reason for the plaintiff to be subject to a punitive measure. He was not unreasonable in rejecting the settlement offer. The issues at trial made the apportionment of liability quite uncertain. There was also a considerable range in the amount of damages which could have been awarded. The plaintiff’s finances would be greatly impacted if an order for double costs was made against him. In addition, the end result was effectively a nil judgment.  Taking into account the legal principles to which I have referred and the particular circumstances which exist in this case, I conclude each party should bear their respective costs after the date of the defendant’s offer to settle. The plaintiff has already suffered some financial consequences for proceeding to trial in that I have decided he shall not receive 100% of his costs until the defendant’s offer to settle, but rather 75% of those costs.
Update – July 22, 2013 – the below action was overturned on appeal with the Defendant being ordered to pay general damages, punitive damages and special costs due to his “misconduct during the trial”
Earlier this year I highlighted a judgement addressing whether a litigant blogging about witnesses during the course of a trial, and referenceing ‘fat bottomed girls’ in the process, amounted to witness intimidation.
Reasons for judgement were released today (Mainstream Canada v. Staniford) by the BC Supreme Court, Vancouver Registry, dealing with the costs consequences following the underlying trial.
Ultimately the Plaintiff’s defamation claim against the Defendant was dismissed. The Defendant would ordinarily be awarded his costs and disbursements under the BC Supreme Court’s ‘loser pays’ system. Madam Justice Adair refused to follow this ordinary course, however, finding that the Defendant’s conduct during the trial was ‘deserving of rebuke‘ and ultimately stripped him of 75% of the costs he otherwise would be entitled to. In doing so the Court provided the following reasons:  The general rule is stated in Rule 14-1(9) of the Supreme Court Civil Rules: “costs of a proceeding must be awarded to the successful party unless the court otherwise orders.” Thus, Rule 14-1(9) continues to confirm the residual discretion of the court to deny, on a principled basis, a successful party the costs to which it would otherwise be entitled: see LeClair v. Mibrella Inc., 2011 BCSC 533 (“LeClair”), at para. 9. Where the successful party has engaged in misconduct, the outcome of the litigation is irrelevant, and the court has the power to deprive the successful party of costs… 8] The discretion conveyed to a judge under Rule 14-1(9) is extremely broad: see LeClair, at para. 30…  I described some of Mr. Staniford’s conduct in my Reasons for Judgment as follows, at paras. 88-92:  . . . During the trial, Mr. Staniford relaunched the GAAIA website, this time using a service provider outside of Canada. During his cross-examination, Mr. Staniford proclaimed that he would not be stopped by an injunction pronounced in this action.  Shortly before the trial, and after the witness lists had been exchanged, Mr. Staniford accused the Ahousaht First Nation of accepting “blood money” from Cermaq in one of his Facebook postings.  Mr. Staniford looked on the trial as an opportunity to get his message out, and he did not hold back. For example, in Internet postings during the trial, Mr. Staniford demeaned and mocked the physical appearance of three of Mainstream’s witnesses, Mary Ellen Walling, Leanne Brunt and Dr. Gallo. Mr. Wotherspoon brought the comments concerning Ms. Walling and Ms. Brunt to my attention when court was convened the morning of January 26, 2012. The matter was discussed in court and was framed (appropriately) as an issue of Mr. Staniford victimizing Mainstream’s witnesses by his insulting comments. Mr. Staniford was present during the discussion. Despite that, Mr. Staniford then repeated his comments about Ms. Walling and Ms. Brunt outside court for an interview that was published on YouTube.  During his testimony, Mr. Staniford attempted to justify his comments about Ms. Walling and Ms. Brunt as being “very complimentary,” and said he thought Ms. Walling should be “flattered” at being labelled a “fat-bottomed girl.” The notion that Mr. Staniford would ever pay a sincere compliment to Ms. Walling is, itself, laughable and entirely unbelievable.  In another Facebook posting during the first week of the trial, he compared the trial to a kangaroo court….  By engaging in the conduct I described, Mr. Staniford demonstrated his disrespect for witnesses and his disdain generally for the court and the judicial process.  Mr. Staniford’s flagrant disregard of my comments during the discussion on January 26, 2012 concerning his victimization of witnesses and in my ruling (indexed at 2012 BCSC 1609) is particularly troubling. His YouTube interview shortly after my ruling is roughly equivalent to giving the court “the finger,” as he did to Mainstream and its lawyers in response to their demand letter. Mr. Staniford’s attitude (as expressed during his cross-examination) seemed to be that since Lord Denning’s comments (which I adopted) had been made in the early 1960s, they did not apply to him and he could ignore them. Once again, Mr. Staniford demonstrated that he is a bad listener. His repetition in court, and under oath, of his ridiculous justification for his sexist and puerile comments about Ms. Walling and Ms. Brunt – that the comments were complimentary and flattering – insulted the intelligence of anyone who had to listen to it. …  Although I consider Mr. Staniford’s misconduct in connection with the trial to be serious and clearly deserving of censure, I think that depriving the defendants of all of their costs of the action is too severe, given the dollar amounts likely involved for a 20-day trial. I have concluded that an appropriate order is that the defendants have 25% of their assessed costs and disbursements. (There should be only one set of costs for both defendants.) Depriving the defendants of 75% of their assessed costs and disbursements, in my view, reflects appropriate condemnation of Mr. Staniford’s misconduct.
Further to my previous posts on this topic (which can be found here and here), reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, finding that the Rule 15 costs cap can apply to a personal injury claim litigated outside of the fast track when a settlement below $100,000 is achieved.
In the recent case (Varga v. Shin) the Plaintiff was injured in a 2006 collision. The plaintiff initially sought significant damages over $422,000 and the case was prosecuted in the usual course. It was never put into the fast track rule. Prior to trial the case settled for $65,000 plus costs “to be assessed or agreed“. The parties could not agree on the costs consequences with the defendant arguing that the Rule 15 cap should apply. Registrar Sainty agreed and in doing so provided the following reasons:  I prefer Ms Taylor’s submissions in relation to the application of the costs provisions of R. 15-1. In my view, this action, even though it was not declared to be a “fast track” action, is subject to the costs provisions of R. 15-1(15). I agree with Ms Taylor’s submissions that R. 15-1(1) is exclusive and not inclusive. In my opinion, if a matter settles for less than $100,000, R. 15-1(15) applies to the costs of the action. This is made clear, in my view, by the addition to the Rules of R. 14-1(1)(f). That subrule effectively fast tracks actions that were not fast tracked but should have been (see Axten, supra, and Affleck v. Palmer, 2011 BCSC 1366). The cases cited by Mr. Warnett (listed above) were all, in my view, decided per incuriam: without reference to either R. 15-1(1) or 14-1(1)(f) in relation to the issue of costs.  This interpretation is in keeping with the object of the Rules: “to secure the just, speedy and inexpensive determination of every proceeding on its merits” (R. 1-3(1)) and the proportionality provisions set out in R. 1-3(2).  Finally, I note that Mr. Warnett also suggested that, if the defendants wished the provisions of R. 15-1(15) to apply to the action, they ought to have applied to place it into fast track and as they did not do so, they should not be allowed to limit the plaintiff’s costs to the costs allowed under R. 15-1(15). This suggestion cuts both ways however. Just as it was open to the defendants to seek an order bringing the matter into fast track, it was also open to Mr. Warnett to seek an order (even at the trial management conference) that R. 15-1 not apply to the action. He did not do so and as the action is by operation of the Rules a fast track action, it attracts costs per R. 15-1(15).  As I have found that the action falls within the provisions of R. 15-1(15), thus the plaintiff is entitled to some proportion of the $6,500 “cap” available (see Duong v. Howarth, 2005 BCSC 128; and Anderson v. Routbard, 2007 BCCA 193 [Anderson]). In order to avoid a re-attendance before me (or some other registrar) to determine how much of that cap the plaintiff may claim, I am going to employ some “rough and ready justice” (see Anderson, at paragraph 49 and Cathcart v. Olson, 2009 BCSC 618 at paragraph 19) to this matter. I will set the amount at the full $6,500, plus tax. This matter settled some 15 days before trial. Likely a good deal of the trial preparation had occurred up to the settlement. It is therefore appropriate that the plaintiff receive the full amount of the cap: see Gill v. Widjaja, 2011 BCSC 951 (Registrar), aff’d 2011 BCSC 1822.
(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:  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”.  In addition to these principles, I am also guided by the test Finch, C.J.B.C. articulated in Sutherland at para. 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…  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…  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.  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.  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.
Adding to my archived posts addressing tensions between BC’s Judiciary and the Government, reasons for judgement were released today by the BC Supreme Court, Victoria Registry, finding the Government acted in a ‘reprehensible‘ way when dealing with Provincial Court Judges salaries in resorting to “secretive…unconstitutional considerations“. This resulted in an order for payment of special costs.
Today’s case (Provincial Court Judges’ Association of British Columbia v. British Columbia (Attorney General)) is the latest chapter dealing with a salary dispute between the Provincial Court Judges’ Association of BC and the Government. The PCJA succeeded in their petition respecting the remuneration dispute. The PCJA then sought payment of special costs associated with the litigation Mr. Justice Macaulay agreed this was an appropriate remedy and provided the following rebuke to the Government:  The aggravating feature in the present case is the entirely inappropriate response of the AG in the Cabinet submission. The AG knew that the Cabinet submission focused on issues, including the question of linkage between judicial and other civil servant salaries, that the Supreme Court of Canada had expressly rejected in Bodner as unconstitutional. That is evident from the wording of the submission and is deserving of censure.  Given the importance of the process to the public and the PCJA, coupled with the need for transparency in this proceeding, two other matters also deserve censure. First, ordinarily a copy of the Cabinet submission would not be produced. It was only produced in this case as a result of court order. If the Cabinet submission had not been produced, the court may not have appreciated that the government response was based on constitutionally inappropriate considerations. In part, that is because the government affidavit material described the content of the Cabinet submission in a misleading way.  Second, the AG spoke to the media on May 25, 2011, and specifically raised the linkage to other salaries as “another factor” for consideration by government in formulating its response. The AG did not provide an affidavit or any sworn evidence in this proceeding but he did respond, albeit by letter of his counsel, to questions that counsel for the PCJA raised respecting the media interview. Counsel for the PCJA describes the response as disingenuous. I am not prepared to go that far in the circumstances but the response was certainly less than forthright. The actual content and context for the interview is only available because the media recorded it.  In my view, the government’s conduct relating to the important constitutional process of setting judicial remuneration as well as its conduct during the judicial review proceeding deserve judicial rebuke. I reach this conclusion reluctantly but have kept in mind that the effectiveness of the process necessarily depends on the goodwill of government. The secretive resort to unconstitutional considerations during the framing of the government response is entirely inconsistent with the obligation of government as was its failure to be forthright during the proceeding.  In the result, the Legislative Assembly made its decision not understanding how Cabinet arrived at its decision. The public, the PCJA and the court are all entitled to more from the AG and the government  As a result, the PCJA is entitled to its costs, to be assessed as special costs.
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.
This blog is authored by personal injury and ICBC Claims lawyer Erik Magraken. Use of the site and sending or receiving information through it does not establish a solicitor/client relationship. The views expressed and the content provided on this blog is for nonprofit educational purposes. It is not, and is not intended to be, legal advice on any specific set of facts. The use of this website does not create a solicitor-client (attorney-client) relationship. If you require legal advice, you should contact a lawyer directly.