IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Wood Atkinson v. Murphy, |
| 2011 BCSC 1766 |
Date: 20111223
Docket: M083770
Registry:
Vancouver
Between:
Natalie Wood
Atkinson
Plaintiff
And
Sara Murphy and
Willard Murphy
Defendants
Before:
Associate Chief Justice MacKenzie
Reasons for Judgment
Counsel for the Plaintiff: | G. Hilliker, Q.C. & D.W. Kolb |
Counsel for the Defendants: | C.H. Place & P. |
Place and Date of Hearing: | Vancouver, B.C. December 14, 2011 |
Place and Date of Judgment: | Vancouver, B.C. December 23, 2011 |
Introduction
[1]
The plaintiff seeks an order for special costs of the defendants
application to dismiss the plaintiffs claim, including special costs of
todays application. The plaintiff submits the defendants had no proper
foundation to make such a manifestly deficient application that was designed
to punish the plaintiff for errors that were the responsibility of her
employer. The plaintiff says the conduct of the defendants is aggravated by the
fact liability has been admitted, and a dismissal of the action would have
denied the plaintiff damages to which she is entitled.
[2]
The plaintiff does not seek special costs for the defendants successful
application to adjourn the trial, conceding that the adjournment was justified
in the circumstances. The basis for the adjournment was that the plaintiffs
employer, Canada Border Services Agency (CBSA) had, on various occasions,
mistakenly failed to provide counsel with the plaintiffs complete employment
file.
[3]
The plaintiff also seeks a substantial advance of damages in view of the
approximately 18 months between the last trial date of October 3, 2011, and the
new date of March 18, 2013.
Issues
[4]
The issues to be decided at this hearing are:
1. whether the defendants conduct in bringing
the application to dismiss the plaintiffs claim in the circumstances is
deserving of rebuke that justifies an award of special costs; and
2. what
would be a just amount for an advance in this case.
Background
[5]
The plaintiff sustained a bilateral wrist injury in a motor vehicle
accident that occurred on August 28, 2006. The defendants admit liability. The
plaintiff maintains her wrist injury is a permanent partial disability that now
gives her chronic pain. Her claims include damages for past wage loss, loss of
future earning capacity, and non-pecuniary loss.
[6]
The plaintiffs injuries required her to be off work and to work in an
accommodated position at CBSA. Before the accident, she worked as a full-time
Border Service Officer. She now works at a desk job as a Tariff Compliance
Officer, and by the accommodation, works four days a week, using sick leave
credit or unpaid sick leave for the fifth day each week.
[7]
The defendants requested the plaintiffs personnel or employment file
early on in the proceedings, including at the Examination for Discovery by
previous counsel and by letter on August 31, 2009. They have since repeated
these requests. Plaintiffs counsel had assured the defendants that they had
the complete employment file that plaintiffs counsel had requested from CBSA
on June 19, 2009, an updated employment file on May 31, 2011, and any
documents regarding the plaintiffs Use of Force qualification and testing on
August 5, 2011. The last request by plaintiffs counsel was in response to the
August 2, 2011 order of Master MacNaughton.
[8]
Despite these efforts by plaintiffs counsel, defendants counsel
maintained the plaintiff had not produced the complete employment file, and
that there were further documents relevant to the plaintiffs employment
history with CBSA.
[9]
On September 12, 2011, defendants counsel wrote to plaintiffs counsel
requesting his agreement to an adjournment; counsel said he was unable to
properly prepare because of non-production of the plaintiffs personnel file. Plaintiffs
counsel responded the same day, explaining the efforts he had undertaken to
find all the documents requested.
[10]
The next day, defendants counsel told plaintiffs counsel that Ms.
Tsang of CBSA had informed defendants counsel that she had not provided the
entirety of the file. Plaintiffs counsel therefore met with Ms. Tsang at the
CBSA offices where she told him that she had not provided him with the
plaintiffs entire file. Instead, she only gave him what she thought was
appropriate. After discussion, Ms. Tsang agreed to copy the entire file and
have it ready the next day.
[11]
On September 14, 2011, plaintiffs counsel picked up the documents from
CBSA and delivered them to defendants counsel with a cover letter explaining
what happened at CBSA and inviting defendants counsel to contact him directly.
However, the next day, the defendants filed their application for dismissal of
the plaintiffs claim and, in the alternative, for an adjournment. They
supported the application in part by an affidavit sworn by defendants counsel
on September 14, 2011.
[12]
The defendants applications were heard on September 26, 28 and 29,
2011, shortly before the trial of the plaintiffs action set for October 3,
2011.
[13]
On September 26, 2011, the first of the approximately two and a half
days of this hearing, I summarily denied the defendants application for
dismissal of the plaintiffs claim. I concluded the application was clearly
inappropriate because it was based on a failure to produce the complete
employment file which was the fault of neither the plaintiff nor her counsel; they
had done all they could to obtain the documents, including the writing of two
requests by letter and a personal attendance at the CBSA offices. The failure
to comply with the requests was due to repeated errors or internal
miscommunication on the part of CBSA. I described the defendants application
as draconian and noted it was based in part on defendants counsels erroneous
description of the content of two court orders.
[14]
Defendants counsel said the employment file was still not complete. He pursued
the matter after receiving the file from Ms. Tsang, and finally discovered
there were additional documents that related to the plaintiffs employers
accommodation of her injuries.
[15]
This revelation and the mechanics of obtaining the file justified the
defendants application to adjourn the trial as the documents could not be
produced in time for the defendants to properly prepare.
Special Costs
[16]
Plaintiffs counsel brings this application for special costs of the
defendants application to dismiss the claim because he was obliged to retain
outside counsel to respond to the defendants application. Plaintiffs counsel
could not speak to his own affidavit that he swore to correct errors in defendants
counsels affidavit in support of the application.
[17]
Defendants counsel made the application to dismiss partly on the basis
that the plaintiff had failed to comply with two orders of this Court. He said
the first order, made by Master MacNaughton at the Case Planning Conference
(CPC) on August 2, 2011, provided:
The
Plaintiff produce to the Defendants, her Canada Customs personnel file
including any and all assessments for use of force training, firearms training,
and testing in respect thereto by August 31, 2011;
In fact, according to her notes
made after the CPC and recorded in the courts computer scheduling system,
Master MacNaughton only ordered the following:
By
August 31, 2011, [the] Plaintiff to produce her personnel file with respect to
her failure to pass use of force training.
Defendants counsel was clearly mistaken as to the contents
of this order, yet he was present at the CPC when she pronounced it.
[18]
The second order that defendants counsel described in his affidavit and
about which he was also wrong was my order at the Trial Management Conference
(TMC) for this matter on September 7, 2011. He deposed that, the learned
Trial Management Justice made a further Order for production of the personnel
file on or before September 21, 2011.
[19]
After the TMC, I made notes of the pertinent matters discussed at that
conference and recorded that I made the following order:
By
consent, order made the Canada Border Services Agency produce on or before September
21, 2011 a description of the Use of Force requirement.
[20]
Thus, defendants counsel was quite wrong about both orders of this
Court. He swore an affidavit erroneously describing the orders which he then
relied upon in support of a serious application to have this Court dismiss the
plaintiffs claim (or alternatively to adjourn it) as a punitive measure for
conduct for which she was not responsible and because she had not complied with
non-existent orders.
The Law
[21]
The standard of conduct required to merit special costs was summarized
by Madam Justice Wedge in FFS HK Ltd. v. P.T. 25 (Ship), 2011 BCSC 1418,
at paras. 8-10:
[8] In College of New Caledonia v. Kraft Construction
Company Ltd., 2011 BCCA 172, the Court of Appeal set out a concise summary
of conduct attracting special costs, and the role of the trial judge in
awarding such costs, at paras. 27-30:
[27] In Garcia [Garcia v.
Crestbrook Forest Industries Ltd. (1994), 119 D.L.R. (4th) 740, 45 B.C.A.C.
222] this Court confirmed that special costs are the costs that used to be
called solicitor and client costs. They are determined on the same principles
as were applied to an award of solicitor and client costs (Leung v. Leung
(1993), 77 B.C.L.R. (2d) 314, at page 315). Special costs will be awarded if
the conduct of a party was scandalous, outrageous or reprehensible.
[28] In Garcia, this Court
adopted the comments of Chief Justice Esson in Leung that reprehensible conduct
can include
milder forms of misconduct. It means simply deserving of reproof
or rebuke.
[29] As noted by the chambers judge,
special costs will not be awarded simply because a party advances an
unmeritorious claim. In Garcia, this Court expressed the proposition as
follow:
the fact that an action or an appeal has little merit is not in
itself a reason for awarding special costs
Something more is required. In the
present case, the judge quoted the relevant passages from Garcia and Hung and
observed that, [i]t is not sufficient
that the allegations were wrong.
[30] I agree with the submissions
of the respondents that this case presents no point of general significance to
the practice because the analytical framework was established by this Court in
Garcia. It is left to trial judges to determine whether conduct is worthy of
rebuke. Whether this is so, is case specific. In part, that is illustrated by
the Colleges position in this case. It contends the judge erred by awarding
special costs because the College pursued a hopeless claim. In deciding whether
the judge did so, this Court would not be providing guidance as to what
constitutes conduct worthy of rebuke. It merely would be considering whether
the alleged factual matrix is based on nothing more than the weakness of the
Colleges claim, a question of fact.
[9] The Court in College of New Caledonia went on to
uphold the award of special costs because the trial judge concluded that while
the Colleges claim was indeed weak, there were additional aspects of the
factual matrix which, when considered as a whole, warranted special costs.
Those additional factors included the failure of the College to pursue its
claim until the contractual limitation period had expired, and waiting 11
months after commencing the action before serving the defendant although that
was permissible under the Rules.
[10] Most decisions involving special
costs awards are not particularly helpful because they are fact driven.
However, Concord Industrial Services Ltd. v. 371773 B.C. Ltd., 2002 BCSC
900, is instructive. Special costs were ordered where a party displayed
reckless indifference by failing to acknowledge early on that its claim was
manifestly deficient. The Court held at para. 27 that the plaintiffs failure
to come to terms with that manifest deficiency at an early stage of the
proceedings constituted the sort of reckless indifference to the legitimate
interests of the defendant as is envisioned by the authorities which cite
reprehensible conduct as a basis for awarding special costs.
Thus, the standard of reprehensible conduct can include
misconduct deserving of reproof or rebuke. A reckless indifference to the
manifest deficiency of a partys claim can warrant special costs under this
standard. The determination of whether an award for special costs is
appropriate is case-specific and fact driven.
The Positions of the Parties
[22]
Plaintiffs counsel submits the defendants application to dismiss the
plaintiffs claim was borne of reckless indifference as to the responsibility
for the failure to produce the plaintiffs complete employment file. That
responsibility lay with CBSA at all times. The plaintiff cannot be expected to
know what documents will be deemed important by her employer so as to be placed
in her file.
[23]
Furthermore, the plaintiff argues that defendants counsel knew the
application to dismiss her claim was misguided and based on an erroneous
description of two court orders. Plaintiffs counsel brought the mistaken
orders and the CBSA miscommunications to the attention of the defendants
counsel well before the September 26, 2011 hearing, yet defendants counsel
persisted in the heavy-handed application to dismiss the plaintiffs claim.
This application required plaintiffs counsel to hire outside counsel to speak
to his affidavit and caused concern about the possible consequences of the application.
[24]
Defendants counsel said he had been pressing for full production of
documents throughout the proceeding, and only recently received significant
disclosure. According to defendants counsel, some of those documents suggested
there may be a blurred line between those the third party (CBSA) controlled and
those the plaintiff herself controlled.
[25]
Defendants counsel also submitted that the application to dismiss the
claim was not important as the application to adjourn the trial was the more significant
request. Furthermore, defendants counsel was not aware that Ms. Tsang had
finally produced the complete file, nor was he aware of the correct court
orders when he swore his December 14th, 2011 affidavit. Finally, he
argues the plaintiff would have had to retain outside counsel regardless in
order to respond to the application to adjourn the trial.
Discussion
[26]
I cannot accept the defendants submission that the dismissal
application was unimportant relative to the adjournment application. In fact,
the transcript of September 26, 2011 shows counsel for the defendants opened
the hearing by saying:
…
this is an application firstly to have the plaintiffs claim dismissed for
failure to produce the employment file. In the alternative, that the trial of
the matter be adjourned.
[27]
The following exchange concerning the application for dismissal occurred
at pp. 24-25 of the hearing transcript:
THE COURT: But you had — you
had the documents as of September 16th that — that are all that I
understood the plaintiff had. So I am confused about what is missing and why
its material.
MS. LINDSAY: Okay, the —
THE COURT: Thats really the
nub of this.
MS. LINDSAY: Yes.
THE COURT: And are things
going to improve with an adjournment and if so, how?
MS. LINDSAY: All right, let me
just —
THE COURT: Because a dismissal
of the action, I can tell you now, is far too Draconian.
MS. LINDSAY: Okay.
THE COURT: Its not going to
happen.
MS. LINDSAY: Okay. The — let
me just make the one point on this, which is the discovery was — the first
discovery was…August 31, 2009. And remember earlier in the affidavit I said,
My Lady, I just want to point out the date of that discovery.
THE COURT: Yes.
MS. LINDSAY: That was August.
This accommodation —
THE COURT: But the plaintiff
has done what it could. The plaintiff did what it could, or what she could
through her counsel.
MS. LINDSAY: The plaintiff —
THE COURT: I mean there is no
— I absolutely, on the material that I have seen, attribute no bad faith or
deliberate action or intention on the part of the plaintiff. And yet, you know,
you keep saying, If he did request it, et cetera. So we can put all that
aside, we can put any sort of intention, intentional or deliberate
non-disclosure or bad faith aside in this file, because it isnt there.
MS. LINDSAY: Okay.
THE COURT: We can put any
application to dismiss the plaintiffs claim aside, because I am not going to
do it.
MS. LINDSAY: All right.
THE
COURT: The only issue is whether there is material outstanding that still has
not been produced and if so, when could it be produced, and what is it and how
is it material?
Thus, the application to dismiss the plaintiffs claim was
summarily dismissed as excessive and draconian.
[28]
Nor can I accede to any suggestion that the plaintiff ought to have
known, or did know, that e-mails between herself and various persons in her
department referring to her employment or medical situation would constitute
employment records that she was obliged to produce to defendants counsel.
[29]
I have concluded in the circumstances that it is appropriate to award
special costs to the plaintiff for the dismissal application. It is the
mechanism by which the Court expresses its disapproval of two aspects of defendants
counsels conduct. The first aspect is his carelessness in erroneously deposing
to the contents of the two orders in question and relying on them to make a
very serious application to punish the plaintiff. This error was a
self-serving lack of attention to detail.
[30]
Court orders are important. They give effect to the Rule of Law. Counsel
cannot simply rely on their notes or fail to be accurate, especially after
becoming aware of the disagreement or reservation of the other counsel.
Although an application to the court is required to obtain a transcript of
submissions at a CPC or TMC, the clerks notes are readily available. Indeed,
plaintiffs counsel obtained them to clarify the nature of the orders in
question and provided them to defendants counsel.
[31]
Secondly, it is clear that defendants counsel knew well before the hearing
that the dismissal application was ill-conceived and was on notice that his
version of the court orders was in question. Nonetheless, he persisted with
the application.
[32]
An order dismissing a plaintiffs claim for material non-disclosure is a
very serious matter; the consequences for the plaintiff and her counsel would
have been severe. This type of application requires a solid foundation of
misconduct on the part of the plaintiff, especially considering that the
defendants had already admitted liability for her injuries.
[33]
The fact the defendants may have become aware of the file and the
correct nature of the orders after defendants counsel had sworn his September
14, 2011 affidavit (for his application to dismiss filed the next day) is of no
moment because he became aware of these matters well before the start of the
hearing on September 26, 2011. He pursued the application in any event.
[34]
It is no answer to say that outside counsel was required nonetheless in
order to address inconsistencies in counsels version of Ms. Tsangs statements
as to whether she had provided the complete file. Those hearsay issues are
quite minor in the circumstances of all CBSAs errors or miscommunications.
Plaintiffs counsel was put to a clearly unnecessary expense in the requirement
to retain outside counsel to speak to plaintiffs counsels affidavit. The
application to dismiss the claim was misconceived and heavy handed.
[35]
I have concluded it is appropriate to award the plaintiff special costs
for the defendants application to dismiss her claim. The Court heard that
application on the afternoon of September 26, 2011, the first of the three-day
hearing. It is that day for which plaintiffs counsel was obliged to retain
outside counsel to speak to the affidavit that, amongst other things, corrected
the errors in the defendants counsels version of the two orders.
[36]
As to the other two days of the hearing, I agree it is appropriate not
to order costs. The parties will bear their own costs. The defendants have been
rebuked by the award of special costs, and it was, after all, the plaintiffs
employer who was responsible for failing to produce the documents at issue,
thus necessitating the adjournment. It was not the fault of the defendants.
[37]
The plaintiffs will also have special costs of this application.
Appropriate Amount to be Advanced
[38]
The plaintiffs application for an advance on her award of damages is
based on the 18-month adjournment before the new trial date which was required
to accommodate counsels schedules.
[39]
The plaintiff urges that an advance of $80,000 is appropriate and just
in the circumstances based on:
i.
a gross past income loss of $79,583 (or $85,748 if advancement
opportunities are included), which is $56,782 (or $61,012) after tax is
deducted;
ii.
$12,731.84 in unpaid sick days the plaintiff had to take for her
accommodation;
iii.
$21,744 for gross loss of income between the adjournment and trial; and
iv.
a conservative estimate of $30,000 for non-pecuniary damages.
The plaintiffs rely on a report of Curtis Peever of
Associated Economic Consultants Ltd. for their estimates of income loss, and
figures from defendants counsels affidavit for the unpaid sick days.
[40]
The defendants, while conceding that an advance on the plaintiffs
damage award is appropriate, submit that $25,000 is just in all the
circumstances, including that the plaintiff is working and earning income, and
her insurance company has paid both her short term and long term disability
insurance which need not be repaid until settlement of the action or after
trial.
[41]
The defendants submit there is no evidence that, considering the
plaintiff is working, a higher advance would be just in the circumstances. Finally,
they argue that this Court should be reluctant to consider the potential non-pecuniary
award in the advance to the plaintiff to avoid fettering the discretion of the
trial judges.
The Law
[42]
Serban v. Casselman (1995), 2 B.C.L.R. (3d) 316 (C.A.) confirmed
the jurisdiction of this Court to order advance payments on damages under former
Rule 1(12) (now Rule 13-1(19)) as a term of an adjournment of a trial. The
advance must be just in all of the circumstances, and the judge making the
order must be completely satisfied that there is no possibility the final
assessment of damages would be less than the amount of the advance payments.
There is no requirement that the cause of the adjournment be the fault of one
party, see Serban, at paras. 9-11.
[43]
Further guidance is found in the following excerpt from Master Barbers decision
in Tieu v. Jaeger et al., 2003 BCSC 906, at para. 17:
With liability not being in
issue, the plaintiff should be put in funds at the earliest possible time. That
is a reasonable thing for the plaintiff to ask for. The only thing that is
stopping her from getting this money is not a determination of whether she is
entitled to it, but as to how much. When it has been conceded that the sum of
$20,000 is probably going to be less than or at least one-half of what the
future amount she will obtain of $40,000 plus is, I can see no reason not to
give her at least $20,000 at this time. To keep her out of pocket means that,
especially when need is shown, as it has been in her affidavit, would be a
refusal of justice.
[44]
In this case, liability has been admitted, and it will be almost seven
years from the date of the accident to the conclusion of the trial. The
plaintiff is employed, but has problems with chronic pain in her wrists.
Counsel are in agreement that an advance is justified in these circumstances.
The remaining issue is the amount that would be just in the circumstances, ensuring
that it not be in excess of the potential award for damages at trial.
DISCUSSION
[45]
In my view, an advance of $50,000 is appropriate in all the
circumstances. The plaintiff is working and earning a living. She has received
short and long term disability from an insurer, which has a subrogated claim.
The award for non-pecuniary damages is uncertain, though admittedly $30,000
seems conservative at this point. It seems clear that the amount of past loss
of income will be higher than this advance, especially by the time of the
trial.
Conclusion
[46]
I make an order of special costs against the defendants for the September
26, 2011 portion of their application which involved the dismissal of the
plaintiffs claim. I also order special costs against the defendants for the
application itself for special
costs. Finally, I order that an
advance of $50,000 be paid by the defendants to the plaintiff as a term of the
adjournment.
A. MacKenzie A.C.J.
_____________________________
Associate
Chief Justice MacKenzie