IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100526

Docket: M07433

Registry:
Courtenay

Between:

Paul Andrew Berry

Plaintiff

And

Stephanie LaBelle

Defendant

Before:
The Honourable Madam Justice Baker

Reasons for Judgment

(Re: Costs)

[1]          
Mr. Berry was injured in a motor vehicle accident caused by the
negligence of the defendant, Ms. LaBelle.   Following a trial heard on May 12
to 15, 2009, I issued Reasons for Judgment on February 26, 2010.  I awarded the
sum of $30,000 in damages to Mr. Berry.  In the final paragraph of the February
26, 2010 Reasons I indicated that if there were factors relevant to the issue
of costs that had not been brought to my attention, counsel were at liberty to
make submissions about costs.  I specified that submissions should be delivered
on or before March 26, 2010.

[2]          
Counsel for the defendant filed written submissions about costs on March
23, 2010.  Counsel for the plaintiff sought and was granted two extensions of
time and eventually filed a one-page written submission on April 19, 2010.

[3]          
In his submissions, counsel for the defendant provided a copy of an
Offer to Settle delivered by the defendant to the plaintiff on April 14, 2009. 
The Offer is specified to be an offer to settle under Rule 37B of the Rules. 
The proposal was stated as follows:

The
defendant offers to pay the plaintiff the amount of $46,000, (“the amount
offered”), after taking into account Part 7 benefits paid or payable, pursuant
to Section 25 of the Insurance (Motor Vehicle) Act, R.S.B.C. 1996, c. 231 and
any advances paid to date, in satisfaction of these proceedings in their
entirety.  The amount offered includes court order interest assessed to the
date of the delivery of this offer and excludes costs.

[4]          
The offer was stated to be open for acceptance until 4:00 p.m. on the
last business day prior to the commencement of the first day of trial.

[5]          
The face value of the sum offered in settlement  – $46,000 – does exceed
the amount recovered at trial, if I am correct in assuming that the offer is
“new money”.  The language of the offer is ambiguous, in that it is difficult
to determine if the defendant was offering to pay the sum of $46,000 in
addition to any advances that had already been paid; and without reduction of
that sum to take into account payments already made, or that could be made in
future, under Part 7; or whether the offered sum would be reduced by taking
into account advances already made; and Part 7 benefits.  In arriving at my
decision about costs, I have assumed the former.

[6]          
The defendant seeks an order that the plaintiff has his costs up to and
including April 14, 2009 on Scale B; and that the defendant have double costs,
on Scale B, thereafter.  Defendant’s counsel has prepared a draft Bill of Costs
and seeks an award of costs of $17,781.54.  The defendant seeks to set off this
amount against the award of damages made to the plaintiff.

[7]          
In response, counsel for the plaintiff submits this action was governed
by Rule 66 and that if the defendant is entitled to costs, the quantum is
restricted to the sum of $6,600 pursuant to Rule 66(29).  In his brief written
submission, counsel for the Plaintiff asserted that:

The
Plaintiff respectfully submits that the costs in this matter are bound by Rule
66, “Fast Track Litigation”.  The Defendant made a point of putting this
notation on every document and Application presented to the Plaintiff in this
matter except the draft Bill of Costs which makes no reference to “Subject to
Rule 66”.

[8]          
Plaintiff’s counsel also submits that defendant’s counsel prolonged the
trial by inefficient and irrelevant cross-examination; in particular, the
cross-examination of the plaintiff utilizing photographs in a magazine about
“dirt-biking”.

[9]          
The defendant did elect to have this action proceed in accordance with
Rule 66 by attaching an endorsement in Form 137 to the Statement of Defence. 
The Courtenay Trial Registry has advised that an application for a trial date
was made within four months after the date on which Rule 66 became applicable
to the action.  So far as I am aware, no order was ever made that Rule 66 cease
to apply to the action.

[10]       
Sub-rule 66(2) provides that unless the court orders otherwise or the
parties consent, a party is limited to $6,600, exclusive of disbursements, for
costs if the trial is longer than one day.

[11]       
Rule 37B(4) provides that the court may consider an offer to settle when
exercising the court’s discretion in relation to costs.  The court may deprive
a party of some or all of its costs for steps taken after delivery of an offer
or settle; and/or award doubt costs of all of some of the steps taken after
that date to the party who delivered the offer; award costs to a party to which
the party would have been entitled had the offer not been made; or award to the
defendant her costs in respect of all or some of the steps taken after the date
of delivery of the offer.

[12]       
In making an order, the court may consider whether the offer ought
reasonably to have been accepted; the relationship between the terms of
settlement offered and the judgment eventually obtained; the relative financial
circumstances of the parties and any other factor the court considers
appropriate.

[13]       
Counsel for the defendant submits, and I agree, that the plaintiff did
set his sights very high at trial.  In oral submissions at the end of trial,
counsel for the plaintiff argued that the appropriate award for non-pecuniary
damages was between $150,000 to $200,000; that the plaintiff should receive an
award of $45,000 to $60,000 for past loss of income; and that the court should
award $400,000 for loss of the capacity to earn income in future.  The
submissions about income loss were particularly ambitious given that the
plaintiff provided no documentary evidence whatsoever about income earned by
the plaintiff before or after the accident.

[14]       
As my earlier Reasons indicate, I concluded that the plaintiff had
failed to prove a loss of income in the three years prior to trial; and failed
to demonstrate a significant possibility of a loss of capacity to earn income
post-trial.  I decided that an award of the magnitude sought for non-pecuniary
damages was unwarranted given my conclusion that the evidence established only
that the plaintiff had suffered a soft tissue injury to his neck which did not
incapacitate him from working; and that within seven months after the accident
he had returned to rigorous recreational activities.

[15]       
I consider that the offer made by the defendant was one that ought
reasonably to have been accepted, although the plaintiff would, in my view,
have reasonably needed some time to consider his position and seek his
counsel’s advice.

[16]       
As stated earlier, the plaintiff ought to have anticipated significant
difficulty in maintaining a loss of income claim without the ability, or
willingness, to provide documentary evidence about his earnings before or after
the accident.

[17]       
By the date of the defendant’s offer, the plaintiff had available to him
the medical opinion evidence on which he relied at trial.  Given that the
medical evidence ruled out neurological injury; plaintiff’s counsel would have
had plenty of precedents available to assist in assessing the likely range of
quantum of non-pecuniary damages.

[18]       
I have been given no information about the financial circumstances of
the defendant.  Surprisingly, I also have little information about the
plaintiff’s financial circumstances.  I can, however, infer that the plaintiff
has limited means.  The plaintiff runs his own drywall business and at time of
trial, employed one individual who worked with him.  The plaintiff is married,
with two older children from a previous relationship, and a young son with his
present spouse.  There was some evidence about difficulty the plaintiff and his
spouse had had in the past in obtaining a mortgage loan.  There was also
evidence about the plaintiff having a large outstanding liability for tax. 
Evidence was led at trial indicating that the downturn in the economy in the
fall of 2008 had had a significant and detrimental effect on the construction
industry, and on the amount of work available to the plaintiff.

[19]       
Certainly the effect of the costs order the defendant is seeking would
be to deprive the plaintiff of the greater part of the compensation to which I
concluded he is entitled by reason of the defendant’s negligence and the
plaintiff’s injury.

[20]       
The plaintiff sought an award of special costs against the defendant on
the grounds that defendant’s counsel’s conduct in the cross-examination of the
plaintiff’s family doctor had been reprehensibly aggressive.  I rejected this
submission at trial.  I agree with plaintiff’s counsel, however, that some of
plaintiff’s counsel’s cross-examination of the plaintiff was unhelpful – the
details of various drywall techniques, for example, and a lengthy
cross-examination utilizing photographs in a motorcycle magazine.

[21]       
In all of the circumstances, I am satisfied that it would be inequitable
to make an award of double costs in favour of the defendant.  The defendant
having elected to proceed under Rule 66, I am satisfied that the defendant’s
entitlement to costs should be governed by Rule 66.  I award the plaintiff his
costs, on Scale B, not to exceed $6,600, up to and including April 21, 2009,
plus disbursements incurred to that date.  In respect of proceedings after that
date, the defendant shall have her costs, but also limited to $6,600 pursuant
to Rule 66(29); and her disbursements from and after April 22, 2009.   There
shall be no order for double costs.  Each party shall bear his or her own costs
in relation to the submissions about costs.

[22]       
If the parties are unable to agree on the amount of the disbursements,
they may proceed to have the costs assessed by the Registrar, in the usual
course.

“W.G.
Baker J.”