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Tag: X v. Y

Costs and "Transitional Proceedings" in the BC Supreme Court

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:

[10] Under the New Rules a transitional proceeding means a proceeding that was started before July 1, 2010.

[11] 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.

[12] 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.

[13] 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.

[14] 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.

[15] 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.

[16] In the result I conclude that the New Rules govern the determination of costs in this proceeding.

$140,000 Non-Pecuniary Damage Assessment for T-12 Burst Fracture

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages following a 2005 motor vehicle collision.
In this week’s case (X v. Y) the Plaintiff was an RCMP officer.  (Supplemental reasons were released permitting the Plaintiff to identify himself by initials and to seal the Court file given the Plaintiff’s undercover work).  He was responding to an emergency call.  He was travelling on his motorcycle when he was struck by a truck driven by the Defendant who was in the course of making a U-turn.  Although fault was put at issue the Court found the defendant fully liable for the collision.

The Plaintiff suffered a burst fracture at the T-12 level which required surgical intervention.  He suffered from chronic pain following this and although he was able to return to police work he could only do so in a more administrative (as opposed to front-line) capacity.  In assessing non-pecuniary damages at $140,000 Madam Justice Dardi provided the following reasons:
[101] The plaintiff underwent surgery on July 21, 2005, after which Dr. D. explained to the plaintiff that he had a burst fracture in his vertebrae in the thoracolumbar region, and that metal rods, clamps and screws had been placed in the area to fuse the spine together. The plaintiff was fitted with a clamshell brace in order to stabilize his fused spine and prevent him from moving. He was not allowed to sit or stand up unless he was wearing this brace. He used a walker to manoeuvre around the hospital. After physiotherapy treatments, he was able to walk short distances, go to the bathroom, and get in and out of his hospital bed. He was released from the hospital on July 27, 2005…
[147] It is uncontroversial that the plaintiff suffered a serious injury in the accident: a fractured spine which required surgical fusion with metal instrumentation. The medical evidence clearly establishes that he is permanently disabled insofar as repetitive heavy bending, lifting and high-impact activities. He has an increased risk for the development or acceleration of degenerative disc disease and is at an increased susceptibility for reinjuring his back…

[163] In summary on this issue, I find that the plaintiff’s symptoms are genuine. He regularly experiences varying degrees of pain and significant stiffness, tightness, and spasms in his back. The cold exacerbates his symptoms. He will continue to experience episodic aggravation of his symptoms. He is at an increased risk of developing degenerative arthritis and he has an increased susceptibility for further injury to his back. He also faces the possibility of another surgery to remove the hardware in his back. He has reduced stamina and tires much more easily than prior to the collision. I also conclude that as the plaintiff ages, there is a substantial likelihood that his pain and discomfort will increase because he will not be able to maintain the same level of conditioning in the muscles supporting the fused area of his back.

[164] In terms of his career, the preponderance of the evidence clearly supports a finding that the plaintiff is not fit to perform the full range of policing duties. He must avoid impact activities and any risk of physical altercations with suspects, which restricts him from participation in front-line policing duties. He can no longer perform the duties of a motorcycle officer, nor is he able to pursue his ambition to join the ERT as an operational member…

[179] While the authorities are instructive, I do not propose to review them in detail, as each case turns on its own unique facts. Having reviewed all of the authorities provided by both counsel, and in considering the plaintiff’s particular circumstances, I conclude a fair and reasonable award for non-pecuniary damages is $140,000.