Update September 25, 2013 – The below decision was upheld by the BC Court of Appeal in reasons released today
I’ve written many times about the BC Supreme Court’s “loser pays” system which generally requires a losing litigant to pay for the winner’s costs and disbursements. If a lawsuit is started on a child’s behalf and on reaching adulthood they take over the claim themselves can the former litigation guardian still be exposed to loser pays costs consequences? The answer is yes as was demonstrated in reasons for judgement released this week by the BC Supreme Court, Vancouver Registry.
In this week’s case (McIlvenna v. Viebeg) a lawsuit was commenced on behalf of an infant plaintiff in 2003. By 2009 the Plaintiff was an adult and took over the prosecution of his claim himself by filing an affidavit of attainment of majority. The matter proceeded to trial and the claim was ultimately dismissed. The Defendant was awarded costs. An issue arose as to whether the Plaintiff or the previous litigation guardian were liable to pay these. The Court held that the Litigation Guardian was liable for costs up until the Plaintiff reached the age of majority and the Plaintiff was liable from that point onward. Mr. Justice Sigurdson provided the following reasons:
 Although Bird J.A.’s comments on the liability of litigation guardians for costs in Miller were dicta, they were considered dicta. Bird J.A. concluded that an infant ratifying the action after attaining the age of majority does not inherit and replace the litigation guardian’s liability for costs. I have seen nothing in the authorities that lends support to the position that a defendant’s possible entitlement to costs from a litigation guardian disappears when the infant reaches majority. I expect that subsequent to Miller, litigation guardians starting actions (and filing affidavits at the time) understood their potential liability for costs and the fact that it continued at least up to the infant’s majority. Rule 20-2(12) and (13) do not suggest that the filing an affidavit upon attaining the age of majority removes any possible past liability of the litigation guardian for costs.
 While it is true that a possible adverse costs order may deter a person from suing as a litigation guardian, there are also policy reasons that support awarding costs in favour of successful defendants. In any event, I think the underlying law has been clear for more the 50 years that a litigation guardian assumes potential liability for costs if he or she starts an action as a litigation guardian and is not successful.
 Accordingly, my conclusion is that Shawne McIlvenna, the plaintiff’s former litigation guardian, is responsible for the costs that I have already ordered, up to February 27, 2009, when the plaintiff filed his affidavit of majority. ..
Tag: RUle 14
Update September 25, 2013 – The below decision was upheld by the BC Court of Appeal in reasons released today
In an all too familiar development reasons for judgement were released last week by the BC Surpeme Corut, New Westminster Registry, considering and rejecting ICBC’s “Low Velocity Impact” defence.
In last week’s case (Hoy v. Harvey) the Plaintiff was involved in a 2010 rear-end collision. The impact resulted very minor vehicle damage. The defendant argued that the Plaintiff “could not have sustained his claimed injuries from such a minor impact“. Madam Justice Fitzpatrick rejected this logic and provided the following reasons:
 As in most motor vehicle injury cases involving soft tissue injuries, the defence cites the oft quoted decision in Price v. Kostryba (1982), 70 B.C.L.R. 397, where Chief Justice McEachern, as he then was, stated that the Court must exercise caution in respect of subjective complaints of pain in respect of those soft tissue injuries (at 399).
 I agree that the extent of this collision is relatively minor and that this is a factor to be considered when assessing Mr. Hoy’s claims of injury. However, it is equally clear that even low impact collisions may cause injuries. In Lubick v. Mei and another, 2008 BCSC 555, Mr. Justice Macaulay stated:
 The Courts have long debunked as myth the suggestion that low impact can be directly correlated with lack of compensable injury. In Gordon v. Palmer,  B.C.J. No. 474 (S.C.), Thackray J., as he then was, made the following comments that are still apposite today:
I do not subscribe to the view that if there is no motor vehicle damage then there is no injury. This is a philosophy that the Insurance Corporation of British Columbia may follow, but it has no application in court. It is not a legal principle of which I am aware and I have never heard it endorsed as a medical principle.
He goes on to point out that the presence and extent of injuries are determined on the evidence, not with “extraneous philosophies that some would impose on the judicial process”. In particular, he noted that there was no evidence to substantiate the defence theory in the case before him. Similarly, there is no evidence to substantiate the defence contention that Lubick could not have sustained any injury here because the vehicle impact was slight.
 I am satisfied that Lubick sustained an injury in the collision in spite of the low impact.
 Generally speaking, I found Mr. Hoy to have given his evidence in a straightforward and direct manner. His subjective complaints of pain were confirmed by objective testing by both his family physician, Dr. Yong, and his physiotherapist, Ms. Mattiello. It is accepted that prior to the accident, Mr. Hoy was in good health and was suffering none of the complaints that arose just after the accident.
 In these circumstances, I am satisfied that the injuries suffered by Mr. Hoy in the accident were caused by the accident and that accordingly, causation has been proven.
The Court went on to note that the Plaintiff suffered minor soft tissue injuries which went on to make full recovery. In awarding $7,000 for non-pecuniary damages the Court provided the following reasons:
 In this case, Mr. Hoy’s most significant injuries can be said to have been resolved fairly quickly. His neck injury was only significant for a period of approximately two months which coincided with his last treatment by his physiotherapist, Ms. Mattiello. Thereafter, he would have pain only once per month for four further episodes. His back pain persisted to the point of affecting his lifestyle only for a period of approximately three months, when he returned to work full-time and began to resume his sporting activities. All symptoms were completely resolved by May 2011, or within 11 months…
 I award the sum of $7,000 for non-pecuniary damages.
Lastly, paragraphs 93-104 of the reasons for judgement are worth reviewing for the Court’s analysis in declining to award the Plaintiff costs finding there was no sufficient reason to bring this modest claim in Supreme Court. You can click here to read other decisions addressing this discretionary issue.
As previously discussed, a Plaintiff’s financial circumstances is not relevant when assessing “loser pays” costs consequences following trial in the BC Supreme Court (subject to the different analysis that applies when pre-trial formal settlement offers have been made). Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, demonstrating this.
In last week’s case (Staley v. Squirrel Systems of Canada Ltd.) the Plaintiff sued the Defendant for damages due to alleged wrongful dismissal. The claim was dismissed at trial. The Defendant applied for costs to be paid with the Plaintiff opposing arguing, in part, that his poor financial circumstances should preclude such a result. Mr. Justice Williams disagreed and ordered that the Plaintiff pay the Defendant’s costs. In doing so the Court provided the following reasons:
 Regrettably, I find myself unable to accede to the plaintiff’s submissions. The Rule with respect to costs is quite fundamental. While there is some latitude for judicial discretion, the authorities make abundantly clear that the discretion must be exercised in a principled and, I would conclude, cautious manner. Deviation from the basic principle that a successful litigant shall recover must necessarily be carefully constrained…
 The third basis for his application is that he is unemployed and experiencing difficult financial circumstances.
 While no evidence is before the Court to establish precisely what his present situation is, I will accept that it is not good. I have genuine sympathy for this plaintiff. I am sure that the requirement to pay costs to the defendant will be a real burden for him in his circumstances.
 Indeed, I expect that it is frequently the case that there are substantial discrepancies between the means of parties to litigation. Unsuccessful litigants are not infrequently in difficult financial straits, and orders for costs can exacerbate that situation.
 However, I am unable to conclude that an order requiring him to pay the defendant’s costs, in accordance with the relevant tariff, $11,000, would be so “unfair and inappropriately punitive” to make the order sought. There are no special circumstances in this case which warrant an order for reduced costs or relieving the plaintiff from paying the defendant’s costs.
As previoulsy discussed, when a Plaintiff sues 2 parties and succeeds only against one the Court had a discretion under Rule 14-1(18) to order that the unsuccessful defendant pay the successful defendants costs. Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, demonstrating the flexibility of this discretion in action.
In last week’s case (Bakker v. Nahanee) the Plaintiff was injured when struck by a stolen vehicle being driven by the Defendant. The Plaintiff sued for damages and, as is customary in BC, also sued the Registered owner of the vehicle alleging vicarious liability pursuant to section 86 of BC’s Motor Vehicle Act. As the lawsuit progressed it became clear that the at fault vehicle was indeed stolen making the vicarious liability claims untenable.
Ultimately the action was dismissed against the owner and a settlement was reached with respect to the claim against the driver. The Plaintiff applied for an order that the Driver pay the costs of the successful owner. Madam Justice Fitzpatrick agreed such a result was justified but only until the examination for discovery phase where it was obvious that the vicarious liability claims would not succeed. The Court provided the following reasons:
 Supreme Court Civil Rule 14-1 (18) provides that the Court may exercise its discretion in ordering that the costs of one defendant be paid by another defendant:
If the costs of one defendant against a plaintiff ought to be paid by another defendant, the court may order payment to be made by one defendant to the other directly, or may order the plaintiff to pay the costs of the successful defendant and allow the plaintiff to include those costs as a disbursement in the costs payable to the plaintiff by the unsuccessful defendant…
 It is not a novel concept that when preparing pleadings, all parties who are potentially liable should be included where a valid cause of action can be reasonably advanced. This applies equally in the arena of motor vehicle litigation. In this respect, Mr. Bakker also relied on the evidence of Mr. David Kolb, a Vancouver lawyer who practices in this area. He states that an owner of the vehicle in question is always named as a defendant arising from the statutory vicarious liability under the Motor Vehicle Act. He goes on to state that even if the car was purportedly stolen, it is wise to err on the side of caution and name all parties until further investigations are done to ensure that all facts are known before the owner is released from the litigation. He cites as an example, that while the driver/thief and the owner may have different names, further investigations may in fact reveal that they were related and resided together, in which case the owner would be liable even if a stolen vehicle is involved. There may also be issues of fraud or improper motive on the part of the owner who reported the vehicle as stolen. Until such facts as may establish liability are ruled out, it is a prudent practice to name the owner.
 In these circumstances, as a general proposition, I am of the view that Mr. Bakker was reasonable in naming Ms. Ang and GMAC as defendants to this action…
 In my view, and exercising my discretion, the granting of a Bullock order is appropriate in the circumstances but the order should be limited, similar to that which was ordered in Cominco at 212. Accordingly, Mr. Bakker is entitled to a Bullock order but only in respect of the costs incurred up to and including the examination for discovery of Ms. Ang on September 20, 2007. By that time, Mr. Bakker’s counsel had elicited sufficient evidence from Ms. Ang to be satisfied that she and GMAC had no vicarious liability and that there were no mechanical issues relating to the vehicle. Beyond September 20, 2007, I am unable to say that it would be just or fair to fix Mr. Nahanee with the costs of Ms. Ang and GMAC.
(Update October 2, 2012 – The below post was upheld on appeal in reasons for judgement released today)
Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing reasonable photocopy expenses in a bill of disbursements.
In the recent case (Chow v. Nguyen) the parties could not agree to the reasonableness of various disbursements incurred in the prosecution of a personal injury claim. In the course of the lawsuit the Plaintiff’s lawyer made 7,231 photocopies and claimed disbursements at $0.25 per copy. ICBC argued this was unreasonable. Master McDiarmid disagreed and allowed this disbursement as presented. In doing so the Court provided the following reasons:
Counsel for the defendant and third party also objected to the photocopy charges. She accepted plaintiff’s counsel’s representation that the 7,231 photocopies were in fact made. There was no argument that the photocopying was not necessary or proper; rather, the argument was that the 25¢ per page was excessive given the actual cost of photocopying. When assessing costs, a registrar must determine which disbursements have been necessarily or properly incurred in the conduct of the proceedings, and I must allow a reasonable amount for those disbursements (Rule 14-1(5) of the Supreme Court Civil Rules (the “Civil Rules”)).
Pursuant to Rule 14-1(1) of the Civil Rules, I am to assess costs in accordance with Appendix B. Administrative Notice 5 effective July 1, 2010 directs that photocopying charges may be allowed at 25¢ per page on a party/party bill of costs. This amount is a guideline only. If it is shown that the actual cost was or should have been different from the guideline charges, the amounts allowed on an assessment may differ from the guideline amounts.
The actual cost of photocopying is difficult to determine, in as much as it involves a combination of fixed costs, per page costs, and labour costs. There was no evidence before me to show what the actual cost was. I find that in the circumstances of this case, the number of photocopies was both necessary and proper, and I allow the photocopying charges as claimed in the amount of $1,807.75, plus applicable taxes.
This case is also worth reviewing for the Court’s discussion of document binding charges (dismissed as overhead) and the cost of fairly expensive expert reports which were allowed as being reasonable given the circumstanses of the case.
In my continued effort to document judicial treatment of the LVI Defence, I summarize reasons for judgement released last week by the BC Supreme Court, Vancouver Registry, yet again addressing and rejecting submissions based on this defence.
In last week’s case (Johnson v. Keats) the Plaintiff was injured in a low-speed rear end crash in Burnaby, BC. The collision resulted in little vehicle damage. The Plaintiff sustained soft tissue injuries of a relatively minor nature and claimed damages.
At trial the Defendant argued that the injuries were not connected to this low velocity collision. Madam Justice Wedge disagreed and found the Plaintiff proved his case and awarded $16,000 in non-pecuniary damages. In dismissing the LVI Defence the Court provided the following reasons:
 The defendant argued that the plaintiff had not established causation between the accident and his alleged injuries. The gist of the defendant’s position on causation was that it did not follow that the plaintiff, a strapping young man in reasonable physical shape, could suffer the alleged soft tissue injuries from such a low velocity impact.
 The difficulty with this argument is that there is simply no evidence to support it. The defendant did not have the plaintiff examined by a physician or call any evidence to suggest that low velocity impacts could not cause the kind of soft tissue injuries that the plaintiff claimed to suffer as a result of the accident.
 Moreover, the defendant did not put that theory to Dr. Lim when she testified. It was not suggested in cross-examination of Dr. Lim that Mr. Johnson was malingering or exaggerating his injuries.
 The defendant attempted to attack the plaintiff’s credibility by pointing to what I can only describe as minuscule discrepancies in his evidence.
 The plaintiff was a credible and even a quite remarkably low-key witness. He did not attempt to exaggerate his symptoms. His evidence was straightforward and matter of fact. He readily acknowledged he was sufficiently recovered after three weeks to return to light duties and in slightly less than three months was fit to take on the more strenuous labouring tasks of a longshoreman.
 Dr. Lim, too, gave forthright and factual evidence. She did not attempt to advocate on her patient’s behalf.
 In summary, I am satisfied the accident of March 12, 2009, caused the soft tissue injuries described by the plaintiff and his physician Dr. Lim.
The global damages awarded were below $25,000. Despite this the Court awarded the Plaintiff costs finding there was sufficient reason to bring the claim in Supreme Court. In doing so the Court provided the following reasons:
…I am cognizant that the amount of the award falls within the jurisdiction of the Provincial Court. However, the case law establishes that if there is sufficient basis for the plaintiff’s proceeding in this Court, this Court has discretion to depart from the provisions of the Rules limiting costs.
 I have considered the issue of costs carefully given the range of non-pecuniary damages for injuries of the nature suffered by the plaintiff. It was reasonable for him to bring his claim in this Court. Accordingly, it is reasonable and fair that the plaintiff receive his costs pursuant to Rule 15-1.
Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for soft tissue injuries sustained in consecutive motor vehicle collisions.
In last week’s case (Liu v. Thaker) the Plaintiff was involved in two collisions, the first in October of 2007 and the second a month later. Both collisions caused relatively minor soft tissue injuries which largely recovered in 4 months. In assessing Non-Pecuniary Damages at $10,000 Mr. Justice Schultes made the following findings:
 On the whole I would say that the plaintiff’s case offered persuasive evidence of relatively minor soft-tissue injuries, rather than the unpersuasive evidence of more serious injuries that is sometimes seen in motor vehicle injury cases.
 I find that Mr. Liu did suffer the injuries that he described and that they were caused by the two accidents for which the defendants have admitted responsibility. These were soft-tissue injuries to the neck and shoulder which had largely resolved by the end of February 2009, about four months after the first accident…
 In all the circumstances, balancing the various factors, and having due regard to the range, but not being straight jacketed by it, I consider an award of $10,000 for non-pecuniary damages to be appropriate in this case.
Paragraphs 75-82 of the reasons for judgment are also worth reviewing for the Court’s reasoning in denying the Plaintiff costs findng there was no ‘sufficient reason’ to sue in Supreme Court pursuant to Rule 14-1(10).
Lastly, paragraph 56 is worth reviewing for the Court’s comments addressing the Defendant’s ‘low velocity impact’ testimony. Mr. Justice Schultes provided the following criticism:
 Except as to the bare contours of his involvement in the first accident, I did not find Mr. Thaker’s evidence credible. He sought to portray the impact as so slight as to be virtually negligible — a mere touching of the vehicles, in his view. But he also sought to absolve himself of the responsibility of having caused the accident, even though liability has been admitted on his behalf. This suggested somewhat of a self-serving perspective on his part, which is at odds with the reality of the situation. It also made no sense to me, if the impact had been as trivial as Mr. Thaker claimed, that he would have asked Mr. Liu if he was okay afterwards, as he described. On his version of a mere touching between the vehicles, such an inquiry would have been completely unnecessary.
As previously discussed, Section 10 of BC’s Workers Compensation Act operates to generally strip you of your right to sue if you are injured in the course of your employment by someone else in the course of their employment. If this defence is raised and succeeds in a personal injury lawsuit the claim will be dismissed exposing a Plaintiff to ‘loser pays’ costs consequences. Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, demonstrating this reality.
In this week’s case (McKay v. Marx) the Plaintiff was injured in a 2005 collision. His vehicle was rear-ended by a Fed Ex vehicle. The Plaintiff sued for damages. There was no dispute that the Defendant was in the course of employment when the crash happened. The defendant argued that the plaintiff was also a ‘worker’ and therefore his right to sue was stripped away. The issue was sent to WCAT for determination who ruled that the Plaintiff was indeed a worker.
Given WCAT’s findings the Plaintiff’s lawsuit was dismissed. The Defendant applied for costs and ultimately was successful. In doing so Madam Justice Dorgan provided the following reasons:
 The circumstances in which the plaintiff found himself are unfortunate and they garner some sympathy. However, the authorities explicitly prohibit this court from denying costs by exercising discretion out of a sense of fairness or sympathy or a comparison of the relative economic strength of the parties.
 In summary, the defendants successfully pled a s. 10 Workers Compensation Act defence and are thus the substantially successful party ?? the winner of the event. The evidence as presented falls short of demonstrating such reprehensible conduct on the part of the defendants that would allow the court, in the exercise of its discretion, to depart from the general rule. Accordingly, the defendants are entitled to costs.
Update November 17, 2014 – in Reasons released today the BC Court of Appeal overruled the below decisions and found interest on disbursements cannot be recovered.
Update – May 17, 2013 – the below decision was overturned on Appeal. You can click here to read about this development
A very uncertain area of the law relates to recovery of interest on disbursements. Last year the BC Court of Appeal declined to resolve this uncertainty. Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, further weighing in on this inconsistent area of law finding that interest on disbursements is not recoverable.
In today’s case (MacKenzie v. Rogalasky) the Plaintiff was injured in a motor vehicle collision. In the course of the lawsuit the Plaintiff borrowed $25,000 to finance the disbursements in his case. Following trial the interest on this loan was over $11,000. The Plaintiff sought to recover this interest but Registrar Sainty declined to allow this claim. In doing so the Court provided the following reasons:
Based on all of the matters that I have considered — and I have had this matter under consideration for some time; I reviewed all of the submissions before coming here today and then today I have heard even more comprehensive submissions from counsel — I find that I am not bound by the decision of Mr. Justice Burnyeat in Milne. None of the decisions cited to me in favour of awarding interest, including Milne, are on all fours with the facts before me. Milne arose in the context of settlement of an action. Here, the matter was decided following a trial. Further, I find that Mr. Justice Burnyeat’s comments in Milne were obiter and are not binding on me. The case before me is also distinguishable from the decision of Registrar Cameron in Chandi as, in that case, counsel told the Learned Registrar that he was bound by Milne. His Honour was not given the benefit of the submissions I have had regarding the nature of that decision; nor of the impact of theCourt Order Interest Act on his decision. On that basis I may distinguish his reasons.
That, of course, does not end the matter because the fundamental question still remains to be answered: Is this a disbursement that is recoverable by the plaintiff? I think that it is not on the basis of the arguments made by Mr. Parsons, most particularly those related to the impact of the Court Order Interest Act on claims of this nature.
Firstly, a successful party’s right to claim disbursements does not actually arise until the action itself has been determined and so, until the judgment has been rendered, no entitlement arises to recover any costs or any disbursement. Accordingly there can be no right to claim any disbursement until the determination of the action.
The decision in Milne was made without the benefit of the extensive argument that was before me, particularly the argument based on the application of the provisions of the Court Order Interest Act. That Act makes it clear that the legislature did not intend that interest be recoverable on disbursements.
Nor can it be said that the object of costs (as compared to damages for a tortious act) is to return a party to his pre-litigation status and thus interest ought not to be recoverable. Costs are not intended to provide full indemnity to a successful party and the successful party is only entitled to recover necessary or proper disbursements at a reasonable amount. In my view it cannot be said that interest on disbursements is a necessary and proper adjunct of litigation. It is simply one of those unfortunate matters that arose in the circumstances of this particular plaintiff and I find it is not reasonable that the plaintiff recover it.
So, for all of these reasons, I am going to disallow the plaintiff’s claim for interest paid to the third party lender in respect of the loan to fund the disbursements.
One of the notable changes under the new BC Supreme Court Civil Rules was an increase in Tariff Costs. If a trial occurred under the former Rules of Court but the reasons for judgement are not delivered until after the new BC Supreme Court Civil Rules came into effect which Rules govern the costs award? Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, addressing this question.
In this week’s case (X v. Y) the Plaintiff was injured in a 2005 motorcycle collision. He worked as an undercover RCMP officer and as a result was given permission to have himself and witnesses referred to via initials in the reasons for judgement. His injuries included a burst fracture in his mid-spine. His claim for damages was successful at trial which took place under the former Rules of Court. The reasons for judgement, however, were not released until after the new Rules came into force.
The Defendant agreed the Plaintiff was entitled to costs but argued the lesser costs under the former Rules should apply. Madam Justice Dardi rejected this argument and awarded costs under the current Rules. In doing so the Court provided the following reasons:
 Under the New Rules a transitional proceeding means a proceeding that was started before July 1, 2010.
 Supreme Court Civil Rule 24-1(2) states as follows:
A transitional proceeding is deemed to be a proceeding started under these Supreme Court Civil Rules.
 Supreme Court Civil Rule 24-1(14) states that:
If a step in a proceeding is taken before July 1, 2010, the former Supreme Court Rules apply to any right or obligation arising out of or relating to that step if and to the extent that that right or obligation is to have effect before September 1, 2010.
 Section 10 of Appendix B to the New Rules provides:
Without limiting section 9, Appendix B of the Supreme Court Rules, B.C. Reg. 221/90, as it read on June 30, 2010, applies to
(a) orders for costs made after December 31, 2006 and before July 1, 2010,
(b) settlements reached after December 31, 2006 and before July 1, 2010 under which payment of assessed costs is agreed to,
(c) costs payable on acceptance of an offer to settle made under Rule 37 or 37B, if that offer to settle was made after December 31, 2006 and before July 1, 2010, and
(d) all assessments related to those orders, settlements and costs.
 This proceeding is a transitional proceeding pursuant to Rule 24-1(2) and as such, the determination of costs is governed by Rule 14-1. Although the trial was commenced under the former Rules, the judgment in this matter was rendered on July 18, 2011. The defendants’ obligation to pay damages arose on that date. As there were no rights or obligations arising out of or relating to the trial that were to have effect before September 1, 2010, I cannot conclude that Rule 24-1(14) has any application to the determination of costs in this case.
 Furthermore, on a plain reading of Section 10 of Appendix B, Appendix B of the former Rules has no application to this case as there were no relevant offers or orders made prior to July 1, 2010.
 In the result I conclude that the New Rules govern the determination of costs in this proceeding.