Tag: Rule 15-1(15)

Costs Update: More on Rule 15 and Pre Trial Settlement Costs

Written by admin on July 18, 2012. Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 15. 57 Comments on Costs Update: More on Rule 15 and Pre Trial Settlement Costs

Last year reasons for judgement were released discussing the lump sum costs available to parties under Rule 15. Reasons for judgement were recently published by the BC Supreme Court, Vancouver Registry, finding that the quantum pre trial Rule 15 settlement costs should remain a matter of discretion.
In the recent case (Benz v. Coxe) the parties settled a personal injury claim for an undisclosed quantum plus costs. The parties could not agree to the amount of costs and the issue was put before the Court. Ultimately Registrar Sainty held $6,5000 was an appropriate quantum of costs on the facts of the case (settled in the mature phase of litigation) but held that no hard and fast rule should exist making this amount appropriate across the board. In doing so the Court provided the following reasons:

[15] I appreciate the submissions of counsel. I have found those of Mr. Jeffrey to be more persuasive than those of Mr. Cope. I am going to continue to support my decision in Cathcart No.1 for a variety of reasons.

[16] Firstly, I think it is important to note, as Harvey J. confirmed in Gill v. Widjaja, supra, that Rule 15-1(15) gives the Registrar wide discretion in determining the appropriate tariff amount. If I were to accede to Mr. Cope’s submission — that in every case you get the cap unless there are special circumstances — I believe that, would be taking away from the discretion given to the Registrar to make these types of decisions.

[17] Secondly, I think Mr. Cope’s approach, rather than taking away from confusion, makes matters more confusing. I do not think one can draw a line in the sand and decide, for example, that where there has been discovery and there are no other special circumstances, you get the cap. However, If there has been no discovery and there are no other special circumstances (yet to be decided and which must be argued), you will probably get some proportion of the cap. One might still end up in the same position. Because whether you call it special circumstances, parsing out, or rough and ready, the parties will still end up assessing costs before a registrar who would then decide where the case was, in terms of preparedness, and who would also have to decide if there are (or are not) special circumstances such that the cap or something less might be awarded.

[18] I agree with Mr. Jeffrey, who submitted that the fairest approach in these types of circumstances is to consider all of the circumstances of the action. I also agree that the fact Harvey J. says one should not get bogged down in the details does not take away from the rough and ready approach, which is actually more fair, I think, to all the parties, because to make discoveries, say, the arbitrary line in the sand could result in some injustices. For example, there may be those odd circumstances where no discoveries have been conducted and were set for a week or two before trial for some reason or other. In those circumstances, using Mr. Cope’s “line in the sand”, a plaintiff might have to apply to a registrar to find special circumstance so that they might get the full cap amount (or something approximating it) if the case settled before the discoveries had been conducted but still, essentially, on the eve of trial.

[19] On the basis of all of the above, I stand by my decision in Cathcart No.1.

More on Rule 15 and Pre Trial Costs Assessments

Written by admin on February 23, 2012. Posted in BCSC Civil Rule 15, Uncategorized.

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

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

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

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

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

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

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

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

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

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

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

Plaintiff Awarded $9,500 Costs Despite $4,000 Damage Assessement

Written by admin on November 7, 2011. Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 1, BCSC Civil Rule 14, BCSC Civil Rule 15.

Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, with the “curious result” of costs recovery at over double the amount of assessed damages.
In last week’s case (Kargbo v. Chand) the Plaintiff was involved in a motor vehicle collision. ICBC disputed both fault and injury. At trial the Plaintiff’s claim was accepted and modest damages of $4,000 were awarded. The Plaintiff sought her costs. ICBC opposed arguing the Plaintiff did not have sufficient reason to sue in Supreme Court.
Earlier this year the BC Court of Appeal made it clear that more than the value of an ICBC Claim can be considered in deciding whether there is sufficient reason to sue in the Supreme Court. Mr. Justice Williams went on to canvass factors other than value and concluded that the Plaintiff was entitled to $9,500 in costs under Rule 15-1(15). The Court provided the following reasons:

[9] The problem ultimately reduces to this: If the Court determines that the plaintiff had sufficient reason for commencing or proceeding in the Supreme Court, she should be entitled to recover costs in accordance with Rule 15-1(15). If the Court finds that there was not sufficient reason for bringing the proceeding in this Court, then she is not entitled to recover her costs.

[10] In Reimann v. Aziz, 2007 BCCA 448, the Court of Appeal clarified that the issue has to be analyzed as at the point in time that the plaintiff initiated the action; there is no ongoing obligation to assess the quantum of claim.

[11] I have been provided with a number of decisions where judges of this Court have assessed the circumstances of cases to decide whether or not an order for costs is warranted. Obviously, the plaintiff bears the onus of establishing that there was sufficient reason for filing in the Supreme Court. It is not simply a matter of assessing the anticipated value of the claim. A number of factors have been identified in the cases as being relevant to the issue. These include the following (the list is not intended to be exhaustive):

1. the legal or factual complexity of the case;

2. the need for discovery of documents and examinations for discovery;

3. the need for a judgment enforceable outside of British Columbia;

4. a bona fide preference for a jury trial;

5. access to the summary trial procedure available in Supreme Court; and

6. the need for the plaintiff to have legal counsel, in light of the defendant’s denial of liability, dispute as to causation, injury or loss and allegations of contributory negligence, pre-existing conditions, previous causes and a failure to mitigate.

[12] In the present case, liability was denied and in the circumstances could reasonably have been expected to represent a challenge to prove. As well, the issue of damages had the real potential of being a problem. The plaintiff had a history of prior accidents and had been hospitalized shortly after the accident in question for matters not related to the accident. She was also injured in another more serious accident some several months after the accident at bar. It was the sort of case that a self-represented plaintiff would find daunting no doubt.

[13] Taking those considerations into account, it is my view that this plaintiff had sufficient reason for bringing her proceeding in the Supreme Court.

[14] As a parenthetical observation, it is true that a party such as this plaintiff could elect to pursue the claim in the Provincial Court with legal counsel, although the prospect of incurring the expense to do so without any right to recover court costs is a legitimate factor to consider. As well, where the plaintiff elects to bring suit in the Supreme Court, she runs the real risk of an adverse costs outcome if the action is unsuccessful.

[15] In the circumstances, it is my view that the plaintiff should be entitled to costs in accordance with the Rules of Court. I recognize that might appear to produce a curious result in that the award of costs is substantially greater than the damages that she recovered. However, if the matter is considered fairly and objectively and the relevant rule applied, that result follows.

[16] There is no question that the policy which underpins Rule 14-1(1) is to encourage parties with claims of modest value to bring their action in the Provincial Court, and to provide for a penalty against one who does not. That is consistent with the concept of proportionality which is a foundational consideration of the Court’s Rules.

[17] The clear default position will be that, with respect to claims where the award is less than $25,000, the plaintiff will not be entitled to an award of costs. Nevertheless, there will be situations where there is sufficient reason to bring the action in the Supreme Court. It will be for the Court to examine the circumstances of each particular case to determine whether or not there is sufficient reason.

For more cases addressing sufficient reasons to sue in Supreme Court you can click here to access my archived posts on this topic.

Court Holds Rule 15 Costs Cap Can Apply to Trials Prosecuted Outside of the Fast Track

Written by admin on October 18, 2011. Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, BCSC Civil Rule 15, BCSC Civil Rule 7. 44 Comments on Court Holds Rule 15 Costs Cap Can Apply to Trials Prosecuted Outside of the Fast Track

Reasons for judgement were released last week by the BC Supreme Court, Chilliwack Registry, addressing whether the Rule 15 Costs ‘cap‘ can apply to non-Rule 15 lawsuits that proceed to trial but result in judgement below $100,000. In short the Court ruled that the cap should apply in these circumstances.
In last week’s case (Affleck v. Palmer) the Plaintiff sued the Defendants for damages. The claim was not filed under the fast track provisions of Rule 15. The case proceeded by way of summary trial under Rule 9-7 and was successful. The judgement is unclear of the damages awarded but they were apparently over $25,000 under $100,000. The summary trial lasted one day.
The Plaintiff brought an application for lump sum costs of $8,000 under Rule 15-1(15). Mr. Justice Brown agreed that this was appropriate even though the lawsuit was not filed under the provisions of Rule 15. In reaching this conclusion the Court provided the following reasons:

[4] Rule 14-1(1)(f) states that costs payable under the Civil Rules or by court order must be assessed as party and party costs under Appendix B, unless:

…

(f) subject to subrule (10) of this rule,

(i) the only relief granted in the action is one or more of money, real property, a builder’s lien and personal property and the plaintiff recovers a judgment in which the total value of the relief granted is $100,000 or less, exclusive of interest and costs, or

(ii) the trial of the action was completed within 3 days or less,

in which event, Rule 15-1(15) to (17) applies to the action unless the court orders otherwise.

[5] There are other exceptions under Rule 14-1(1), but subsection (f) is the significant one in this case. Rule 14-1(10), which pertains to plaintiffs who recover in this Court a sum within the jurisdiction of the Provincial Court, does not apply in this case.

[6] Rule 15-1(15)(a) states a party in a fast track action is entitled to costs of $8,000, exclusive of disbursements, if the time spent on the hearing is one day or less, unless the court orders otherwise or the parties consent.

[7] I agree with the plaintiffs that although they had proceeded by way of summary trial and did not file a notice of fast track action, the wording of Rule15-1(1) governs and the action qualifies as a fast track action under Rule 15-1(1)(a) or 15-1(1)(b).

[8] As the plaintiffs point out, because they claimed various forms of relief under the Business Corporations Act, S.B.C. 2002, c. 57 [Business Corporations Act], it is arguable they were claiming more than monetary relief. Even so, the action still completed under Rule 9-7 in less than one day.

[9] The plaintiffs submit it would be appropriate for me to order $8,000 in costs. This represents the amount payable in a fast track action; and, despite the fact that the plaintiffs proceeded by way of summary trial under Rule 9-7, the plaintiffs submit an order for $8,000 in costs is appropriate in this case. I find the $8,000 set out in Rule 15-1(15)(a) is appropriate in this case.

This case is also a useful precedent because as set out in paragraph 8 the Court suggests that Rule 15 applies regardless of quantum provided the trial takes three days or less.

This case is worth reading in conjunction with the recent case of Johnson v. Axten which held that the Rule 15 costs cap can apply to pre-trial settlements of under $100,000 even if the case was not prosecuted under the fast track rule.

Rule 15-1 and Pre Trial Settlement Costs

Written by admin on July 18, 2011. Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 15.

Useful reasons for judgement were released today by the BC Supreme Court, Chilliwack Registry, addressing costs consequences when fast track cases settle prior to the first day of trial. In short the Court held that the rules operate to fix lump sum costs of $6,500 in these circumstances.
In today’s case (Gill v. Widjaja) the Plaintiff was injured in a collision. The Plaintiff sued pursuant to Rule 15. ICBC made a formal settlement offer of $34,800 plus assessable costs and disbursements. Following this the parties could not agree on some of the disbursement items. The matter was ultimately put before the Court and in adjudicating the dispute Master Baker confirmed that costs under Rule 15 are set via lump sum. Specifically the Court provided the following useful reasons:

[16] Tariff amount and Rule 15-1. The real question is: how much should the fee mandated by Rule 15-1, when the matter is settled without trial, be further affected by preparation or lack thereof? Counsel agree that the starting sum is $8,000.00 and that, since no trial proceeded, there should be a reduction of one day’s costs ($1,500.00). After that they disagree. Mr. Cope says there should be the equivalent of one-half day’s trial cost added back in for trial preparation. Ms. Tonge says $2,000.00 should be further deducted. Certainly, the Rule permits departure from the indicated amount, as it is prefaced with “Unless the court otherwise orders…”.

[17] I start with the assumption that, once the portion attributed to the first day of trial is deducted, the balance is allocated to preparation. It would take compelling facts and circumstances to depart from that simple principle. And that simple principle should be applied when one recalls that the costs provisions of Rule 15-1 are intended to be summary in nature and to avoid assessments such as this. Counsel referred me to other authorities considering and, in effect, parsing pre-trial proceedings, but those cases seem to apply to situations where Rule 37 or 37B offers were made and either accepted or refused. In those cases, of course, it became important to mark the point in the proceedings when the offer was made and to then invoke the Rules’ effects on costs for the proceedings thereafter. In such a case it would require that some assessment be made of the degree of preparation done at the point of the offer. This is not that case.

[18] Mr. Cope argued that Ms. Gill was due some allowance for preparation, yet the tariff items in his bill included Item 17 “All process and correspondence associated with retaining and consulting all experts…” and Item 18 “All process and correspondence associated with contacting, interviewing and issuing subpoenas to all witnesses”. While the items do not apply per se, as Rule 15-1(15)’s omnibus cap does instead, Mr. Cope obviously considered all of that to include most, if not all, of the usual allowable stages of preparation. His draft in the form presented is a tacit admission of that. Moreover, as Ms. Tonge pointed out, there is no evidence of any unusual preparation having occurred before the offer was made and accepted.

[19] Similarly, there is no basis to take the reverse view and conclude that, given the matter settled seven weeks before trial, that no, or substantially no, preparation would have taken place. Quite the contrary: it is clear that Mr. Cope took the usual steps to obtain and organize the evidence he would need to that point and that those preparations were sufficient that he and Ms. Gill were prepared to settle.

[20] In the end there is no basis for any intervention by me, either to deduct or add in, respecting preparation costs. The only deduction from the fast track capped cost will be $1,500.00 representing the first day of trial.

[21] In sum, then, the fee portion of Ms. Gill’s bill of costs is fixed at $6,500.00

Costs Awards For Settlements Below $100,000

Written by admin on February 16, 2011. 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.