IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100920

Docket: M064862

Registry:
Vancouver

Between:

Miguel Mendoza Cue

Plaintiff

And

Roy Breitkreuz and

Gary’s Delivery
Service Ltd.

Defendants

Before:
The Honourable Mr. Justice Nathan Smith

Reasons for Judgment

[1]            
On April 30, 2010, I gave reasons for judgment dismissing the
plaintiff’s claim for injuries arising out of a motor vehicle accident. 
Counsel have now made submissions on the issue of costs.

[2]            
This matter went to trial only on the issue of liability.  The plaintiff
and defendant gave conflicting evidence about how the accident occurred and I
preferred the evidence of the defendant, in large part because it was
consistent with the evidence of the only independent witness.  Counsel have now
advised me of the following facts relevant to costs.

a)    On April 11,
2008, defence counsel made a former offer to settle for $1.

b)    On April 22,
2008, defence counsel advised plaintiff’s counsel about the evidence of the
independent witness.  Plaintiff’s counsel says that information did not include
the witness’ name or contact information, which was not provided until August
5, 2008.  Even then, counsel says repeated attempts to contact and interview
the witness were unsuccessful.  Defence counsel also had considerable
difficulty serving that witness with a subpoena to attend trial.

c)     On August
8, 2008, plaintiff’s counsel advised that his client would waive his claim in
excess of $25,000 in order to bring the matter within the jurisdiction of the
provincial court (small claims division).  He proposed that the matter be
transferred to that court, but defence counsel did not agree, stating that he
thought such a transfer would result in greater delay.

d)    On February 23,
2009, counsel agreed that, although the matter remained in this court, the
plaintiff’s claim would still be limited to the small claims jurisdiction plus
disbursements from the date of the agreement, with costs prior to that date to
be determined by the trial judge or by agreement of counsel.  It was also at
that time counsel agreed to proceed to trial first on liability only.

[3]            
The defendant now seeks costs at scale B to February 23, 2009, including
double costs for the period following delivery of the offer to settle. The
offer to settle was delivered under the former Rule 37(24), which provided that
a plaintiff who did not accept an offer and whose claim was later dismissed was
required to pay double costs from the date the offer was delivered.  That
result is no longer automatic because Rule 9-1(5) now gives the court a broad
discretion to decide whether, and to what extent, it will give effect to a
settlement offer.

[4]            
Although counsel’s agreement left the issue of costs prior to February
23, 2009 for determination of the trial judge, I must consider the matter
within the framework of the Supreme Court Civil Rules, B.C. Reg.
168/2009.  Rule 14-1(10) reads:

(10)      A plaintiff who
recovers a sum within the jurisdiction of the Provincial Court under the Small
Claims Act is not entitled to costs, other than disbursements, unless the
court finds that there was sufficient reason for bringing the proceeding in the
Supreme Court and so orders.

[5]            
That Rule is intended to discourage parties whose claims can be decided
in Provincial Court, from pursuing them in this court.  The rules of the
Provincial Court do not provide for an award of costs, other than fees for
filing and serving documents and “reasonable charges or expenses” that
“directly relate to the conduct of the proceeding.”  (Small Claims Rules,
B.C. Reg. 261/93, Rule 20(2)).

[6]            
 In this case, the plaintiff clearly recognized that the matter should
have been brought in Provincial Court and was prepared to transfer it.  Had
that been done, neither party would have been entitled to costs.

[7]            
The matter remained in this court subject to an agreement to still limit
the claim to what could be awarded in Provincial Court. Had my liability
decision been different and the matter proceeded to an assessment of damages,
Rule 14-1(10) would have been a bar to an award of any costs, other than
disbursements, in favour of the plaintiff.  In my view, fairness requires that
the same limitation apply to the successful defendant, particularly as the
defendant did not agree to the proposed transfer to Provincial Court.

[8]            
I therefore decline to award any costs to the defendant, other than
disbursements.  There is therefore no need to consider the offer to settle
because there are no costs to double.

[9]            
There appear to be some issues as to which disbursements are
appropriate.  These include expenses incurred by counsel in compelling the
attendance of the expert witness at trial and expenses incurred by the
defendant for his own attendance.  I leave those matters to be determined by
the registrar on assessment in the normal way.  In that regard, counsel
suggests that there may be some differences between the disbursements usually
allowed in this court and what may be allowed as “reasonable expenses” under
the rules of the Provincial Court.  I emphasize that disbursements are being
awarded pursuant to a judgment of this court and must be assessed according to
the rules and practice of this court.

“Nathan
Smith J.”