IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20121016

Docket: M94690

Registry:
New Westminster

Between:

Stanley You Won
Lee aka Stanley Lee

Plaintiff

And:

Ruth Eleanor
Jarvie and Rosana Ng

Defendants

Before:
The Honourable Mr. Justice G.R.J. Gaul

Reasons for Judgment
(Costs)

Introduction

[1]            
The plaintiff was injured in a motor vehicle accident in September 2004.
In October 2005, he initiated a civil claim against the defendants.

[2]            
The defendants admitted liability for the accident and consequently the
principal issue at trial was determining the type and quantum of damages the
plaintiff was entitled to. In that regard, the plaintiff sought the following:

[3]            
The trial of the plaintiff’s claim was scheduled for five days. That
time estimate was wildly inaccurate. Following what became a 14-day trial that
took place in a piecemeal fashion over the course of 12 months, I granted the
plaintiff judgment and awarded him the following:

[4]            
My Reasons for Judgment are indexed at 2010 BCSC 1852 (“Reasons for
Judgment”).

[5]            
The parties have not been able to agree on the issue of costs, nor have
they been able to agree on the terms of the order resulting from the trial of
this matter.

Issues

[6]            
The central issue before me is whether the plaintiff is entitled to all
of his costs and disbursement or whether there should be an apportionment of
costs between the parties.

[7]            
The second issue, one that is much less contentious than the first, is
to determine the wording of the order resulting from my Reasons for Judgment.

Discussion and Decision

  Issue #1: Costs

[8]            
Until 1 July 2010, the issue of costs was governed by Rule 57
of the former Rules of Court. On 1 July 2010, the new Supreme Court Civil
Rules (the “Rules”) came into force and consequently the determination of costs
now falls under Rule 14‑1 of the Rules. With regard to the cost issues
presently before me, there is no meaningful or material difference between the
former Rule 57 and Rule 14‑1.

[9]            
The plaintiff argues that he was successful at trial. Therefore, relying
upon Rule 14‑1(9) of the Supreme Court Civil Rules, he says he is
entitled to all of his costs and disbursements. Rule 14‑1(9) reads:

Costs to follow event

(9)        Subject to subrule (12),
costs of a proceeding must be awarded to the successful party unless the court
otherwise orders.

[10]        
The defendants argue there should be an apportionment of costs between
the parties, because the plaintiff failed to prove his claims for past wage
loss, loss of earning capacity, cost of future care, and loss of housekeeping
services. In that regard, the defendants seek an order pursuant to Rule 14‑1(15)
that the plaintiff be denied his costs for those specific heads claims, and
concomitantly that the defendants be granted their costs for these discreet portions
of the plaintiff’s claim. Rule 14‑1(15) reads:

Costs of whole or part of proceeding

(15)      The court may award costs

(a)        of a proceeding,

(b)        that
relate to some particular application, step or matter in or related to the
proceeding, or

(c)        except
so far as they relate to some particular application, step or matter in or
related to the proceeding

and in awarding those costs the
court may fix the amount of costs, including the amount of disbursements.

[11]        
As an alternative to apportioning costs, the defendants seek an order
pursuant to Rule 14‑1(9) that the plaintiff be denied all or a part
of his costs of his action.

  Apportionment of
Costs

[12]        
The issues of apportioning costs between parties under Rule 57(15)
of the former Rules of Court was addressed and considered in British
Columbia v. Worthington (Canada) Inc. et al (1988), 32 C.P.C. (2d) 166, 29
B.C.L.R. (2d) 145 (C.A) and more recently in Sutherland v. Canada (Attorney
General), 2008 BCCA 27. From these cases, I have drawn the following guiding
principles relating to the apportionment of costs:

1)    Applications to
apportion costs should be the exception and not the norm in civil litigation,
and they should be limited to “relatively rare cases”.

2)    The power to
apportion costs is a discretionary one that “must be exercised judicially, not arbitrarily
or capriciously”.

3)   
The exercise of discretion must be connected to circumstances of the
particular case “which render it manifestly fair and just to apportion costs”.

[13]        
In addition to these principles, I am also guided by the test Finch, C.J.B.C.
articulated in Sutherland at para. 31:

[31]      The test for the
apportionment of costs under Rule 57(15) can be set out as follows:

 (1)        the party seeking
apportionment must establish that there are separate and discrete issues upon
which the ultimately unsuccessful party succeeded at trial;

 (2)        there must be a
basis on which the trial judge can identify the time attributable to the trial
of these separate issues;

 (3)        it must
be shown that apportionment would effect a just result.

  Are there “separate
and discrete issues” in the present case?

[14]        
In addressing the first part of the Sutherland test, counsel for
the plaintiff urged the court to “maintain a ‘big picture’ view of this action.”
Highlighting the seriousness of the actual motor vehicle accident, as evidenced
in the photographs taken of the plaintiff’s car shortly after the accident,
counsel for the plaintiff argued it would have been imprudent of the plaintiff
not to have advanced claims under all of the heads of damages that he did,
including those where the court made no award. Moreover, the plaintiff argued
that by its very nature, a personal injury case is not amenable to the apportionment
of costs because all of the issues are generally intertwined and consequently
there are no distinct or discreet issues that can be severed for the purposes
of determining costs.

[15]        
The defendants argued that the issues in this case can be discretely compartmentalized
for the purposes of determining and assessing costs. Moreover, the defendants
submit that the plaintiff exaggerated the nature and extent of his claims, thus
creating a protracted and unnecessarily prolonged litigation. For these
reasons, say the defendants, this matter is one where costs can and should be
apportioned.

[16]        
Counsel have drawn my attention to a number of cases where the question
of the apportionment of costs in a personal injury action was considered.

[17]        
In Bailey v. Victory, [1992] B.C.J. No. 982 (S.C.) (Q.L.), the
plaintiff was awarded $92,000 for the damages he suffered in a motor vehicle
accident. The plaintiff had sought significant compensation for past loss of
income and future loss of income; however the court awarded only $26,000 and
$30,000 for each of those respective heads of damages. The parties could not
agree on the issue of costs and consequently they sought the trial judge’s
determination of the question. In her reasons for judgment on the issue of
costs, reported at [1993] B.C.J. No. 901 (S.C.) (Q.L.), Madam Justice Ryan
(as she then was) awarded each party 50% of their respective costs and
disbursements, to be set-off one against the other. The plaintiff was also
denied the costs associated with a vocational report that had been prepared in
support of his claim for future income loss. The court’s decision to apportion
costs was based on its finding that much of trial had been devoted to the
plaintiff’s pursuit of an inflated and exaggerated claim for loss of future
income.

[18]        
The plaintiff appealed the trial judge’s decision on costs. The essence
of the appellant’s argument was that the evidence adduced at trial touched on
all of the heads of damages and therefore there were no clearly discrete or
severable issues that allowed for the apportionment of cost. At para. 15
of its reasons for judgment reported at (1995), 4 B.C.L.R. (3d) 388 (C.A.), the
British Columbia Court of Appeal rejected this argument, remarking:

[15]      Counsel for the
appellant submitted that, unlike the situation in Worthington, supra, where the
issues raised by the defendant and on which it failed were clearly severable,
the issues in the present case could not be easily separated. He submitted that
the evidence adduced related to all the disputed heads of damage,
non-pecuniary, past wage loss, and future income loss and argued that the
plaintiff’s claim for future loss, to which the evidence of the impugned video
tape related, could not be treated as a separate issue amenable to the
provisions of Rule 57(5). I am unable to accept this submission.

[19]        
 The Court of Appeal nevertheless allowed the appeal and varied the
trial judge’s order on costs, concluding at paras. 35 to 38:

[35]      In this case, the
plaintiff succeeded on the issue of liability and recovered judgment
substantially in excess of the amount paid into court and advanced. He may be
said to have lost the battle he sought to fight on the ground which he chose,
although he did recover under the head of lost earning capacity. His failure in
this regard no doubt protracted the trial and he should bear the consequences
of that, but no more.

[36]      The trial judge has a
discretion. That discretion is a judicial one and must be exercised in
accordance with consistent principles. I do not think that the judgment of the
trial judge in this case is consistent with the principles applied in the Gaudiuso
case and reflected in its outcome.

[37]      It is my opinion that a
proper exercise of discretion under the Rules applied in this case would be to
deny the plaintiff his costs of 3 days of the trial and, of course, the
disbursements associated with Mr. Nordin’s report, but otherwise to allow
him the costs of the action in the court below.

[38]      In the result, I would allow
the appeal to the extent that I have indicated. I would award the plaintiff his
costs of this appeal and the costs of the subsequent proceedings after the
trial relating to the question of costs. I would not award the defendant any
costs in the court below and so there would be no set-off.

[20]        
In Berston v. McCrea, [1996] B.C.J. No. 134 (S.C.), the plaintiff
sued for damages allegedly suffered in a motor vehicle accident. For past loss
of income, the plaintiff sought an award of between $45,000 and $60,000. For future
loss of earnings, he sought an award of between $595,000 and $700,000. After a
13-day trial before Drost J. sitting with a jury, the plaintiff was
awarded $10,000 for past loss of income and no award for future loss of earnings.

[21]        
The defendant sought an apportionment of costs based on the jury’s
rejection of the plaintiff’s principal claim for loss of future earnings. In
addressing this issue, Drost J. considered the principles articulated in Worthington
and concluded at paras. 47 to 52:

[47]      Mr. Berston
claimed that, as a result of the accident, he had developed fibromyalgia, and
was thus unable to continue working his recently-staked placer mining claims.
There was medical evidence to support his claims, but the opinions expressed by
the plaintiffs’ expert witnesses were based, to a large extent, on what
Mr. Berston had told them.

[48]      With one exception, those witnesses acknowledged
during cross-examination that he had withheld important information from them,
such as the fact and extent of his prior injuries, and that at the time of the
accident he was already suffering from continuing back and shoulder problems
for which he was taking regular chiropractic treatments. With one exception,
they agreed that had they known of those things, they might well have reached
different opinions as to the extent and result of the injuries caused by the
accident.

[49]      In fact, one of Mr. Berston’s
experts, Dr. Dunne, a Rheumatologist, gave opinion evidence in support of
Mr. Berston’s claims, also acknowledged that he was "surprised"
by the extent of Mr. Berston’s physical activities shown on the video
tapes.

[50]      The only exception was
Mr. Berston’s general practitioner, Dr. Dykes, who said that he could
not recall whether or not Mr. Berston had told him about his prior
injuries and the treatments he was taking. But, in my view, Dr. Dykes’
evidence was of little assistance in any event.

[51]      In my opinion, the
length of this trial was unnecessarily prolonged as a result of Mr. Berston’s
unrealistic claims for loss of past and future earnings. Had he been frank with
his medical advisers, defence counsel would not have been obliged to conduct
such lengthy cross-examinations and call such extensive evidence in order to
refute Mr. Berston’s claims. The trial, with respect to his claims, could
then have been reduced to approximately five days, rather than eleven.

[52]      Taking account of that
factor, and of the total failure of his claim for loss of future earnings, I have
concluded that Mr. Berston is entitled to recover 50% of the costs to
which he would otherwise be entitled.

[22]        
In DiFranco v. Sung, [1998] B.C.J. No. 430 (S.C.), the plaintiff sought
an award of damages for injuries and losses he allegedly suffered as a result
of two motor vehicle accidents. The plaintiff’s actions were consolidated and
heard together in one trial. The plaintiff’s claims against the defendants included
$225,000 for future wage loss and $25,000 for future care costs. Prior to
trial, the defendants offered to settle the plaintiff’s claims for $100,000,
plus taxable costs and disbursements. The plaintiff rejected the offer and
countered with an offer to settle for $150,000, plus taxable costs and
disbursements. The defendants rejected the counter offer and the matter
proceeded to trial. On the sixth day of trial, the plaintiff’s family physician
testified and it was only at this point in the proceeding that it became known
to both counsel for the plaintiff and counsel for the defendants that the
plaintiff had a significant prior history of medical and psychological
complaints and that the plaintiff’s wife had on earlier occasions complained
about the plaintiff mistreating her. This new information about the plaintiff’s
prior medical history had not been disclosed to any of the medical or
rehabilitation experts who had been retained by the parties in preparation for
the litigation.

[23]        
As a result of this surprising disclosure, counsel for the plaintiff
enquired of counsel for the defendants whether their offer to settle for
$100,000 was still open to acceptance. The offer was not and so the trial
continued for another two days.

[24]        
Mr. Justice Burnyeat granted judgment for the plaintiff and awarded
him $35,000 for non-pecuniary damages and $10,240 for loss of past income. The
plaintiff’s claims for future wage loss and future care costs were denied.

[25]        
The defendants applied under former Rule 57(15) for an order
apportioning costs, and more particularly an order that the plaintiff be denied
his costs and disbursements associated with his unsuccessful claim for loss of
future wages and costs of future care.

[26]        
In rejecting the defendants’ application, Burnyeat J. concluded at
para. 12:

[12]      I am satisfied that this
is not one of those “relatively few cases” where there should be an
apportionment of costs. I cannot conclude that the case would have taken less
time or that it would have been settled if the prior medical and psychological
history of the plaintiff had been made known to all of the consultants from the
beginning. At the same time, it is impossible to find that the questions of
future wage loss and future care costs are “neatly severable.” Rather, these
heads of damages are inseparable from the main question raised by the
pleadings: to what extent the admitted negligence of the defendants has created
long term effects for the plaintiff. While the claims may have been
exaggerated, I did not and cannot now conclude that they were imaginary. It is
merely the case that I could not be satisfied on a balance of probabilities
that the plaintiff had shown that there was any loss of earning capacity or any
need for future care costs as a result of the two accidents.

[27]        
In Plackova v. Turcott, 2001 BCSC 1213, the plaintiff claimed a
“global amount” of between $643,000 and $708,000 in damages for injuries and
losses she allegedly suffered in a 1997 motor vehicle accident. The court
awarded the plaintiff $17,000 in non-pecuniary damages but denied her significant
claims for loss of past income and loss of future earning opportunities.

[28]        
In addressing the issue of costs, and more specifically the defendants’
application under former Rule 57(15) for an order apportioning costs,
Coultas J. concluded at paras. 7 and 8:

[7]        With respect to the
success at trial, on the principal issue – the causation of the plaintiff’s alleged
injury to her balance system, the defendant was entirely successful. The
plaintiff sought large damages for her injuries including soft tissue injury,
and was awarded $17,000. She was denied any damages for past income loss or
future loss of opportunity to earn. The defendant successfully proved the
plaintiff to be unreliable and not credible. The trial was made more difficult
and prolonged because of credibility matters.

[8]        Rule 57(9) of the Rules
of Court provides that costs shall follow the event unless the court
otherwise orders. I find that such an order in this case should not be made.
Rule 57(15) gives the court discretion in awarding costs that relates to
some particular issue or part of the proceedings, or may award costs except so
far as they relate to some issue or part of the proceedings.

[29]        
In the result, the court awarded the plaintiff 20% of her costs and the
defendants 80% of their costs, to be set-off one against the other.

[30]        
In O’Ruairc (Guardian ad litem of) v. Pelletier, 2005 BCSC 1001, a
young plaintiff was injured in two motor vehicle accidents. The legal
proceedings relating to each of the accidents were heard together and in the
result the plaintiff was awarded a global sum of $83,623.90 for non-pecuniary
damages, loss of past income and special damages. The plaintiff’s claim for
loss of future earning capacity and cost of future care, as well as his in
trust claim, were denied.

[31]        
On the issue of costs, the defendants argued that they had been
successful on a number of significant issues and consequently they should be
entitled to an apportionment of costs, pursuant to former Rule 57(15). In
rejecting this argument, Madam Justice Wedge observed:

[34]      …I have concluded
that the plaintiff was substantially successful in the litigation. The trial in
the present case involved both liability (in the Pelletier action, which was
the far more serious of the two) and damages. The plaintiff succeeded in
striking the jury notice and having the issues of liability and damages
severed. He succeeded in establishing liability on the part of the defendant
Pelletier. The plaintiff established both injury and causation, and proved
some, but not all, heads of damages. The fact that he did not achieve the
success he had hoped for does not mean he was not the substantially successful
party.

[35]      I am also satisfied
this is not an appropriate case in which to apportion damages in accordance
with the heads of damages on which the plaintiff succeeded or failed. First,
the issues in the case were not discrete or severable. Second, there were
several complicating factors in this case. The plaintiff was just seventeen
years of age at the time of the accidents…. Much of the time at trial was
spent examining the plaintiff’s life and prospects before and after the accident.
Not surprisingly, the defendants took the position that many of the plaintiff’s
difficulties after the accidents were the expected difficulties of a teenager.
The plaintiff took issue with that proposition. The defendants also argued that
the plaintiff’s difficulties stemmed from a number of other causes, including
the medical treatment he received post-accident. Evidence from lay witnesses
and experts was called by both parties on these issues.

…

[38]      None of the cases
cited by the defendants in which costs were apportioned under Rule 57(15)
deal with personal injury claims. They deal with actions in which the issues
were discreet and severable, and do not apply to the circumstances of this
case.

[32]        
In Shearsmith v. Houdek, 2008 BCSC 1314, the plaintiff sought a
significant monetary award for damages she claimed to have suffered in a 2004
motor vehicle accident. In particular, the plaintiff sought $250,000 for loss
of earning capacity and $190,542 for the cost of future care. Following an
11-day trial, Mr. Justice Romilly awarded the plaintiff $60,000 for
non-pecuniary damages, $20,000 for loss of earning capacity and $1,694 for
special damages. The court found the plaintiff’s claims for past wage loss and
cost of future care “failed completely.”

[33]        
The defendant sought an order apportioning costs under former Rule 57(15).
Mr. Justice Romilly acceded to the defendant’s application and denied the
plaintiff her costs for two days of trial, as well as her disbursements
associated with her claims for past wage loss and cost of future care.
Additionally, the court ordered that the plaintiff pay the defendant’s costs
and disbursements for two days of trial. In reaching this conclusion, Romilly J.
explained:

[22]      After analyzing the
submissions of the plaintiff and the defendant, I reiterate that the
plaintiff’s claims in this action were very exaggerated. I am satisfied that
the defendant has established that there are discrete issues upon which he
succeeded at trial. I agree that the defendant should receive his costs and
disbursements related to the issues of past wage loss and the cost of future
care and, conversely, that the plaintiff should be denied her costs and
disbursements related to those issues.

…

[24]      Lastly, I am of the
view that there was divided success in this action and I find that the
apportionment of costs would therefore produce a just result.

[34]        
In Heppner v. Zia, 2009 BCSC 369, the plaintiff had been involved
in a motor vehicle accident in 2004. She sued the defendants, claiming a global
award of between $175,000 to $200,000 for non-pecuniary damages, loss of past
wages, loss of future income, cost of future care, and special damages. The
court found that the plaintiff had suffered soft tissue injuries as a result of
the accident, and consequently awarded her $75,000 in general damages. The
court also awarded the plaintiff $10,000 for past wage loss and $6,500 in
special damages. However, the court was not persuaded that the plaintiff’s
herniated disc and the surgery required to address that condition were causally
linked to the accident, and on that basis the plaintiff’s claims for loss of
future income and cost of future case were denied.

[35]        
The defendants sought an order pursuant to former Rule 57(15) awarding
them their costs and disbursements in relation to the plaintiff’s unsuccessful
claim that her herniated disc and resulting disability were attributable to the
accident. The plaintiff opposed the defendants’ application, arguing her disc
herniation was not a discrete issue that allowed for an apportionment of costs.
Mr. Justice Cohen granted the application and held that the issue was a
discrete one upon which the defendants where wholly successful. In the result,
the court ordered that the plaintiff be denied her costs associated with the
issue.

[36]        
In Payne v. Lore, 2010 BCSC 1313, Madam Justice Wedge
awarded the plaintiff who had been injured in a motor vehicle accident $165,000
for non-pecuniary damages, $160,000 for past loss of income, and $71,238 in
special damages. The plaintiff’s claims for loss of earning capacity and cost
of future care were dismissed.

[37]        
The defendants applied for an apportionment of costs founded upon their
assertion that they had been successful in defending against two of the
plaintiff’s major heads of damages. In rejecting the application, Wedge J.
cited with approval the observations of Burnyeat J. at para. 12 in DiFranco
(reproduced earlier in these reasons at para. 21) and concluded:

[46]      While Ms. Payne’s
claims for loss of earning capacity and cost of future care were unsuccessful,
the evidence of the treating practitioners and consultants was sufficiently
intertwined with the other issues at trial as to render it inappropriate, in my
view, to hive off portions of the evidence relevant to those heads of damages.
Ms. Payne was, in my view, substantially successful in this personal
injury litigation.

[38]        
The apparent divergence of judicial approaches to the question of
apportioning costs in personal injury cases appears to hinge on the
determination of the degree of success the plaintiff enjoyed at trial and
whether the trial was unnecessarily prolonged by the pursuit of inflated or
unrealistic claims. Where the court finds the plaintiff was substantially
successful at trial and there was no pursuit of exaggerated claims, then
apportionment of costs will less likely be granted. However, where the court
determines there was divided success, or finds there was a distinguishable
portion of the plaintiff’s claim that was unrealistically pursued resulting in
a more protracted proceeding, then subject to the guiding principles
articulated in Worthington and Sutherland, apportionment of costs
is a legitimate consideration.

[39]        
The plaintiff in the case at bar asserts he was substantially successful
at trial. Moreover, much like the plaintiff appellant in Bailey, the
plaintiff maintains it would be difficult, if not impossible, to separate the
evidence, witnesses, or time spent exclusively on each issue or head of
damages. The plaintiff submits that much of the evidence that he presented at
trial was in support of more than one head of damages. Respectfully, I do not
agree with the plaintiff’s argument on this point. In my view, the plaintiff
was not substantially successful at trial. The defendants admitted liability. They
also agreed with the plaintiff’s claim for his actual past wage losses. The
main dispute between the parties and the principal focus of the 13 days of
evidence was on the plaintiff’s claims for loss of past opportunity to earn
wages, loss of future earning capacity, and cost of future care. I found the plaintiff’s
claim on the first two of these issues failed completely and there was divided
success on the third. I should note in passing, that the plaintiff’s claim for loss
of housekeeping capacity was denied as well; however that issue was of such a
minor nature it was practically inconsequential to the outcome of the trial.

[40]        
In my opinion, the trial of the plaintiff’s action resulted in divided
success. I agree with the defendants’ submission that given the divided
success and the clearly distinguishable issues upon which they were successful,
and the fact that the trial was prolonged by the claimant’s pursuit of claims
that were unsupported by the evidence, the plaintiff’s case is one where an
apportionment of costs is worthy of consideration.

  Past
Wage Loss

[41]        
In September 2004, the plaintiff was employed as a clerk at a grocery
store in Port Coquitlam, British Columbia. He was also in the process of
becoming a member of the Royal Canadian Mounted Police (the “RCMP”). In late
October 2004, the plaintiff was informed of his acceptance in the RCMP’s Cadet
Training Program, and he began that training in Regina, Saskatchewan in
November 2004. The plaintiff successfully completed his RCMP training and in
April 2005 he returned to the Metro Vancouver area and began working as a
member of the Burnaby detachment of the RCMP.

[42]        
The plaintiff’s claim for past wage loss incorporated two distinct aspects.
The first related to the wages he actually lost on account of his absence from
work at the grocery store. The second related to the loss of past opportunity
to earn wages from part-time work that the plaintiff said he may have been able
to obtain at the grocery store as well as possible overtime hours he may have
been able to obtain with the RCMP.

[43]        
On the first aspect of the loss of past wage claim, the defendants
accepted that the plaintiff’s injuries from the accident prohibited him from
working at the grocery store from mid-September 2004 until early October 2004
and that he should be compensated for the loss of wages he suffered during this
time period. In the result, I awarded the plaintiff $1,650 for these lost
wages.

[44]        
The defendants argue that the second facet of the plaintiff’s claim for
loss of past wages failed completely and as a result they should be awarded a
portion of their costs for defending the claim.

[45]        
The plaintiff submits that an apportionment of costs on this issue would
punish him for advancing a claim that the court could have accepted. In
support of the second aspect of his past loss of wages claim, the plaintiff
relied on his own testimony, as well as the testimony of a police colleague,
Mr. Chris Larsen, and the expert testimony and evidence of an economist,
Mr. Darren Benning.

[46]        
Overall, I found the testimony of the plaintiff less than convincing. I explained
the foundation for this conclusion at paras. 86, 87,89 and 205 of my
Reasons for Judgment:

[86]      In
great measure I agree with the submission of the defence that Mr. Lee’s
evidence shifted during the course of his testimony and at times contradicted
what he had said previously at his examination for discovery. On occasion I
also found myself simply disbelieving Mr. Lee. An example of this is what
Mr. Lee had to say about the speed of Ms. Jarvie’s vehicle prior to
the collision. As I understand his evidence, Mr. Lee had no idea of the
speed of Ms. Jarvie’s vehicle on the day of the accident, but four and
one-half years later he could, given he is now a police officer with some
undefined and unexplained experience in traffic accidents and traffic
fatalities, “refresh” his memory by means of this police experience, recreate
the few seconds where he looked into his rear-view mirror and saw
Ms. Jarvie’s vehicle approaching and provide what he maintained was an
accurate estimate of the speed of her vehicle. This testimony stretches the
boundaries of belief beyond their limits. I also found Mr. Lee’s evidence
contradictory regarding what he said and who he told at Depot about his
physical injuries. At one point in his evidence Mr. Lee stated he told no
one at Depot about those injuries because he was afraid that disclosing them
could result in him being held-back for additional training or possibly
expelled from the CTP. At another point in his testimony Mr. Lee stated
that he told his principal counselor and his troop’s main facilitator about the
pain he was suffering and the difficulties they were causing him.

[87]      In
general, I found Mr. Lee to be less than forthright during his evidence
and on more than one occasion I found him to be deliberately evasive in
answering the question asked of him…

[89]      It was
only on account of detailed and probing cross-examination that a number of
important and salient facts relating to Mr. Lee’s claim were disclosed or
clarified. These details placed Mr. Lee’s claim in a markedly different
light to the one based solely on what he said in his examination-in-chief.
This, in conjunction with the inconsistencies or contradictions that were
exposed in Mr. Lee’s evidence, compels me to approach his evidence with
caution and scepticism. In general, I am not satisfied with Mr. Lee’s evidence.
Unless I have indicated otherwise in these reasons, where there is a conflict
between Mr. Lee’s evidence and that of another witness, I have given
greater weight to the evidence of the other witness.

[205]    As I
have noted previously in these reasons, I found Mr. Lee’s evidence to be
less than satisfactory. He reported inconsistent pain levels to the various
health care providers who assessed and treated him. He also provided wildly
different descriptions of his need to take pain medications. These, along with
other inconsistencies in his evidence, have contributed to my doubting the
reliability of much of his evidence. I am also gravely concerned by the fact
that Mr. Lee failed to mention his May 2005 motor vehicle accident to any of
the health care professionals who treated him. Uniformly these professionals
testified that this was an important fact that they would have liked to have
known prior to formulating their respective opinions about Mr. Lee’s condition.

[47]        
I addressed Mr. Larsen’s evidence at para. 115 of my Reasons
for Judgment as follows:

[115]    Although I found
Mr. Larsen’s evidence about his dealings with and observations of
Mr. Lee to be credible and reliable, he was in no position and had no
fact-based ability to opine on the overtime opportunities for RCMP members in
Burnaby, the various pay scales within the RCMP and the pension plan for RCMP
members. These portions of Mr. Larsen’s evidence were to a large extent based
on what colleagues had told him and therefore of no assistance to the court.

[48]        
As for Mr. Benning’s evidence on the issue of past wage loss, I remarked
at paras. 192 – 193 of my Reasons for Judgment:

[192]    In cross-examination Mr. Benning
acknowledged that his opinions were reliant upon information provided to him by
Mr. Lee. Surprisingly, this information included the number of overtime
opportunities Mr. Lee claimed he lost on account of the injuries he
suffered in the 2004 accident. I say “surprisingly” because, in his evidence
before me, Mr. Lee testified that he could not estimate the amount of
overtime he had lost.

[193]    Although
I have no difficulty accepting Mr. Benning’s methodology, I do doubt the
usefulness of his evidence given its questionable factual foundation.

[49]        
On the evidence the plaintiff presented at trial, I found the second
aspect of his past loss of wages claim to be completely without merit. I
explained my findings at paras. 218 to 224 of my Reasons for Judgment:

[218]    Mr. Lee also claims
that he could have worked at Save-On Foods on a part‑time basis after he
had returned from Depot and had started working as a regular member of the RCMP
in May 2005. He asserts that he would have worked a minimum of eight, four hour
shifts per month at the hourly rate of at least $22.56. However, he maintains
that the injuries he suffered in the accident prohibited him from doing so.

[219]    No evidence from Save-On
Foods was presented supporting Mr. Lee’s claim that he would have been
given these part-time hours at the hourly rate he asserts. All that I have with
respect to this aspect of Mr. Lee’s claim is his testimony. I find this
evidence is insufficient to persuade me of the validity of the claim and
therefore I reject it.

[220]    Finally, Mr. Lee
submits that he lost lucrative opportunities for overtime hours with the RCMP
on account of his injuries. While Mr. Larsen confirmed that overtime hours
were generally available at the Burnaby RCMP Detachment, he was unable to
quantify those hours in any manner and was in no position to say at what rate
Mr. Lee would have been paid had he chosen to perform any of them.

[221]    I find the following portion of Mr. Lee’s
evidence in chief addresses this issue conclusively:

 Q:        Do
you have any idea how much overtime opportunities you missed?

 A:         No. My
Lord.

[222]    Without a persuasive
evidentiary foundation of the overtime hours that were or would likely have
been available and what Mr. Lee’s rate of pay would have been for those
hours, any award under this facet of the claim would be speculative. I will not
engage in such speculation.

[223]    I note that [the
plaintiff’s expert economist] Mr. Benning provided calculations of what
Mr. Lee’s past lost income could have been on account of his missed
overtime opportunities with the RCMP. However those calculations were based
upon lost overtime figures Mr. Lee provided to Mr. Benning. While Mr. Lee
may well have given Mr. Benning these figures, they were not in evidence
before me as Mr. Lee testified he had no idea how much overtime he had
lost.

[224]    In my
opinion, no factual foundation was presented that would allow me to determine
or even estimate how much overtime with the RCMP Mr. Lee may have lost. In
such circumstances, I find Mr. Benning’s opinion in this area to be of no
assistance.

[50]        
Overall, I disagree with the plaintiff’s submission on this issue. The
evidence presented by the plaintiff on this aspect of his past wage loss claim was
so weak there was no option for the court but to dismiss it. Moreover, in my
opinion the claim was grossly inflated and contributed to an unnecessary
protraction of the trial. I find this facet of the plaintiff’s claim was a
distinct one as it specifically related to the speculative availability of
overtime and part time work. For all of these reasons I find it appropriate to
apportion the costs of this issue.

  Loss
of Future Earning Capacity

[51]        
This was the major head of damages in this litigation and the amount of
trial time consumed by the evidence presented in support of it was significant.

[52]        
In addition to his own evidence, the plaintiff relied upon the expert
evidence of:

1)     his family
physician Dr. Angela Lee;

2)     a semi-retired
orthopedic surgeon Dr. Petar Kokan;

3)     a general
physician with a specialty physical medicine and rehabilitation, Dr. Cecil
Hershler;

4)     an occupational
therapist and certified work capacity evaluator,
Mr. Gary Worthington-White;

5)     a second
occupational therapist, Ms. Lila Quastel;

6)   
 and the economist, Mr. Benning.

[53]        
With respect to the evidence of Dr. Lee, I concluded at paras. 121
– 123 and 125 – 126 of my Reasons for Judgment:

[121]    I found Dr. Lee’s
evidence of some assistance in determining what Mr. Lee told her during
his appointments with her; however, aside from that, I found a number of
aspects of her medical-legal opinion troubling. While Dr. Lee makes
reference to the follow-up appointments she had with Mr. Lee, nowhere in
her report does she record what Mr. Lee told her or what her observations
of him were. These important facts were only disclosed on cross-examination and
only when her attention was drawn to her clinical records for those dates. In
particular, Dr. Lee omitted to include in her report the following
observations that were recorded in her clinical records:

·       
On 27 September 2004, Dr. Lee observed that
Mr. Lee’s neck was “better”. With a casualness that was disconcerting,
Dr. Lee explained her decision to leave this observation out of her report
by claiming she could not foresee what information the court would need to know
and that if a lawyer had any questions regarding her report she could always
prepare an addendum.

·       
On 4 October 2004, Dr. Lee observed that Mr. Lee
continued to feel pain on palpation but was improving and exercising very well.

·       
On 19 October 2004, Mr. Lee told Dr. Lee that he
“feels better”, is “not disabled anymore”, and is “able to go train with RCMP.”
Dr. Lee also observed that Mr. Lee had full range of movement in his
upper and mid back.

·       
On 2 June 2005, Mr. Lee attended Dr. Lee’s office
on account of a motor vehicle accident he had on 31 May 2005. Dr. Lee
recorded that Mr. Lee complained of injuries from that accident that were
similar to those of the 2004 accident, more particularly headaches and sore
bilateral shoulders. Mr. Lee also described how the force of the collision
resulted in the other vehicle being “totalled”.

[122]    Dr. Lee also omitted to reference in her report
that on 19 October 2004, she prepared a medical note for Mr. Lee
indicating the following opinion:

Dear Sir / Madam, Mr. Lee is physically fit to undergo
the RCMP training program. He is healthy. There are no contraindications. Thank
you.

[123]    It is disturbing that
Dr. Lee would provide this medical opinion to the RCMP yet would make no
reference to it in her medical-legal report for the court.

…

[125]    In summary, I accept
that Dr. Lee’s clinical notes correctly reflect the observations she made
of Mr. Lee at their various appointments and accurately record what Mr. Lee
reported to her concerning his situation and condition. Aside from this, I
reject the balance of Dr. Lee’s evidence and specifically her conclusions
about the cause of Mr. Lee’s physical symptoms.

[126]    In
general, Dr. Lee’s testimony left me with the impression that she was more
of an advocate for Mr. Lee than an impartial medical expert witness.
Dr. Lee testified that she purposely omitted from her report some of the
important facts and information that were elicited from her during
cross-examination because she thought they were irrelevant. It is
incomprehensible how a doctor who authors a medical-legal report proffering an
opinion relating to the injuries a patient has allegedly suffered in a motor
vehicle accident would not make at least a passing reference to the fact that
the patient had been in a subsequent motor vehicle accident and had made
complaints of injuries resulting from that second accident. In my opinion, this
serious omission is fatal to Dr. Lee’s opinion evidence.

[54]        
The plaintiff had not provided Dr. Kokan with a complete personal
medical history. For reasons that were not explained, Dr. Kokan was not
informed that the plaintiff had been involved in a subsequent motor vehicle
accident in May 2005. Nor was Dr. Kokan advised that the plaintiff had
slipped and struck his head during his RCMP training in Regina and had suffered
an injury extricating himself from a headlock during a martial arts exercise. I
explained my reasons for giving Dr. Kokan’s evidence little weight at
paras. 139 to 142 of my Reasons for Judgment:

[139]    I find that much like
Dr. Lee’s evidence regarding the origins of Mr. Lee’s pains, I cannot
rely on Dr. Kokan’s medical opinion. The fact that Dr. Kokan
formulated his medical opinion based upon a seriously incomplete medical
history of Mr. Lee is fatal to the opinion and renders it of little value.

[140]    Dr. Kokan’s expert opinion on Mr. Lee’s
ability to remain with the RCMP and to advance through the ranks, was expressed
as follows:

In spite of chronic pain Mr. Lee
finds himself in at this time, there is no medical contraindication to him
being active as a police officer and I believe he will be able to carry on
these duties in spite of pain he has. He appears motivated to excel in his
work.

However, I believe that the chronic pain will interfere with
his plan for advanced studies and advancement in his chosen profession.

[141]    I find Dr. Kokan’s
evidence in this area suffered from a serious internal inconsistency. Dr. Kokan
was questioned on the usefulness of FCEs [Functional Capacity Evaluations] such
as the two prepared for Mr. Lee in this case. In Dr. Kokan’s opinion
the reports were of little value in predicting Mr. Lee’s capacity to
continue working as a police officer in the future. Dr. Kokan’s principal
critique of the FCEs was that they did not realistically or accurately reflect
what Mr. Lee could do as a police officer. In Dr. Kokan’s words, the
first FCE on Mr. Lee, authored by Mr. Worthington-White, “does not
come close to assessing the patient’s functioning at a personal, professional,
or occupational level.” Dr. Kokan was particularly critical of the fact
that the FCEs where completed without any examination of Mr. Lee’s actual
work environment and conditions. In Dr. Kokan’s opinion, a person
performing an FCE should spend at least a half day with the patient to observe
him or her in their actual work environment. Having articulated these concerns
about the frailties of Mr. Lee’s FCEs and having expressed his views about
the factual foundation necessary for such opinions, Dr. Kokan proffered
his opinion that Mr. Lee’s ability to advance within the ranks of the RCMP
will be hindered by his chronic pain, without observing Mr. Lee in his
work environment. In other words, Dr. Kokan’s criticism of the opinions
expressed in Mr. Lee’s FCEs is equally applicable to his own opinion in
this area. The strength of Dr. Kokan’s opinion is also seriously weakened
by the fact that he failed to obtain information regarding the physical
requirements for any of the other positions within the RCMP that Mr. Lee
aspired to, such as becoming a member of the ERT, Canine Team or Air Marshall
Unit.

[142]    On
both the issue of causation as well as the issue of Mr. Lee’s ability to
remain working as a police officer, I find the frailties of Dr. Kokan’s
evidence renders it of little assistance in this case.

[55]        
 I rejected much of Dr. Hershler’s evidence and I explained my
reasons for doing so at paras. 156 to 161 of my Reasons for Judgment:

[156]    Cross-examination of Dr. Hershler
exposed a number of troubling aspects of his evidence.

[157]    The first point of
concern relates to the lack of any reference to Mr. Lee’s motor vehicle
accident in May 2005 in any of Dr. Hershler’s reports. Dr. Hershler
confirmed that Mr. Lee did not tell him about this accident or about any
injuries resulting from it. This omission on the part of Mr. Lee reflects
negatively on him and not Dr. Hershler. However, in preparation for his
second and last addendum, Dr. Hershler had the records of Dr. Lee,
and more particularly her records of Mr. Lee’s appointment on 2 June 2005
where he informed her of his motor vehicle accident two days earlier and the
pain he was suffering from it. Dr. Hershler provided no satisfactory
explanation for not referring to the May 2005 accident in his last addendum. I
can only conclude that he was not aware of that event, notwithstanding what was
contained in Dr. Lee’s clinical records. Dr. Hershler confirmed that
if Mr. Lee suffered injuries such as those described in Dr. Lee’s
clinical records for 2 June 2005, then this fact could prompt him to alter
his opinion with respect to the September 2004 motor vehicle accident being the
sole cause of Mr. Lee’s chronic pain.

[158]    The second point
relates to his conclusion in 2007 that Mr. Lee’s physical fitness had
deteriorated and that he had become “deconditioned” as a result of his
injuries. These opinions were based on what Mr. Lee told Dr. Hershler
and what Dr. Hershler read in Mr. Lee’s first FCE. Dr. Hershler
did not have Mr. Lee perform any physical fitness tests to confirm the
opinion that Mr. Lee was “deconditioned”; he simply accepted Mr. Lee’s
word and adopted the opinion contained in the first FCE. Mr. Lee performed
arduous physical fitness tests during his two FCEs and they both resulted in
findings that he was in good physical condition. The first FCE found
Mr. Lee was “highly functional from a physical point of view” and the
second FCE found Mr. Lee was “at a very good level of fitness” with an
“above average level of aerobic fitness” and in general “a very functional
young man.” I find Dr. Hershler’s acceptance of Mr. Lee’s reporting
without any genuine attempt at verification and his willingness to incorporate
Mr. Lee’s unsubstantiated opinions into his own medical-legal opinion was
unwise and potentially misleading.

[159]    Dr. Hershler’s
preparedness to opine of Mr. Lee’s future employment prospects with the
RCMP is equally concerning. According to Dr. Hershler, a number of
employment opportunities with the RCMP have been foreclosed to Mr. Lee
because “he is not in optimal physical condition.” I find Dr. Hershler had
little to no factual foundation to offer such an opinion as he made no effort
to discover what the physical requirement criteria were for other positions
within the RCMP.

[160]    The fourth and final
point relates to his recommendation that Mr. Lee undergo Pulsed
Electromagnetic Field Therapy, also known as Pulsed Signal Therapy (“PST”). Dr. Hershler
has a personal interest in this type of therapy as he is the principal provider
of it in British Columbia. It is not a widely accepted medical practice and
there continues to be debate in the medical field about the therapy’s
usefulness. I find Dr. Hershler was not as candid as he should have been
when responding to questions about the existence of medical studies and reviews
regarding PST. Although Dr. Hershler denied knowing of any published
studies, later in his cross-examination he agreed that he was aware of one
authored by the University of British Columbia’s Centre for Health Services and
Policy Research – BC Office of Health Technology Assessment, dated December
2001and entitled “Pulsed Signal Therapy for Musculoskeletal Conditions.” Dr. Hershler
admitted that he had become aware of the report after it was published when
someone told him about it. Dr. Hershler was critical of the report’s
findings and the fact that he was not given an opportunity to comment on it
prior to its publication.

[161]    I
accept the observations Dr. Hershler made of Mr. Lee’s condition and
the notations he recorded of what Mr. Lee told him. However, much like the
evidence of Dr. Lee, I find Dr. Hershler’s opinion evidence to be
lacking. The evidentiary foundation to Dr. Hershler’s opinion relating to
the causation of Mr. Lee’s pain is seriously compromised by the fact that
no consideration was given to the fact that Mr. Lee suffered injuries in a
May 2005 motor vehicle accident that were similar to those he attributed to the
September 2004 motor vehicle accident. In general I found Dr. Hershler’s
opinions in the present case to have an insufficient and questionable
evidentiary foundation and consequently I have given them limited weight.

[56]        
My observations of Mr. Worthington-White’s evidence are found at
paras. 182 – 183 of my Reasons for Judgment:

[182]    I found Mr. Worthington-White’s
evidence of assistance in comparing Mr. Lee’s present physical condition vis-à-vis
the requirements associated with being a police officer. As I understood the
evidence, Mr. Lee met or at times exceeded the physical requirements for
being a police officer. Moreover, Mr. Lee was highly functional from a
physical point of view, notwithstanding the fact that he reported feeling pain
and discomfort after sitting for a prolonged period of time (e.g. 90 minutes)
or had to physically exert himself for an extended period of time.

[183]    With
respect to Mr. Lee’s ability to continue and progress as a police officer,
I found Mr. Worthington-White’s evidence less helpful. Mr. Worthington-White
did not observe Mr. Lee in his work environment (e.g. a police
vehicle), nor did he make any enquiries or obtain any information about the
physical requirements for becoming a member of the ERT or any of the other
positions within the RCMP Mr. Lee was interested in. In my opinion, it is
impossible to opine on whether someone has the capacity to perform a job
without first knowing what that job entails.

[57]        
Ms. Quastel provided expert opinion evidence in the area of
occupational therapy, functional capacity evaluations (“FCE”) and future care
costs. The weight given to Ms. Quastel’s evidence was limited and at
paras. 188 – 189 of my Reasons for Judgment I explained:

[188]    I have accepted Ms. Quastel’s
conclusions regarding Mr. Lee’s level of fitness; however I have done so
with some caution because I found her to have been disconcertingly evasive in
answering many questions on cross-examination. For example, Ms. Quastel
took pains to avoid a question relating to whether Mr. Lee’s recorded
heart rate during the various tests could be used as an interpretative tool.
The question was a simple one and it took the court’s intervention to get a
straight answer from Ms. Quastel.

[189]    With
respect to Ms. Quastel’s evidence about Mr. Lee’s future employment
prospects with the RCMP or elsewhere, I find it suffers the same deficiencies
as that of Mr. Worthington-White. Ms. Quastel acknowledged in
cross-examination that she took no steps to determine any of the physical
fitness criteria for any other positions within the RCMP. I can only repeat the
views I expressed earlier, that before offering an opinion about someone’s
ability to perform a job it would seem reasonable and necessary to first find
out the criteria for that job, including its physical requirements. Having
failed to do so, I find little value in Ms. Quastel’s opinions regarding Mr. Lee’s
ability to perform other positions within the RCMP.

[58]        
The opinions provided by Mr. Benning were based upon information
derived from the plaintiff as well as generally accepted actuarial procedures and
principles. Although competent to give expert evidence in this case, Mr. Benning’s
evidence was of little assistance given the plaintiff’s failure to prove the
factual underpinnings Mr. Benning used to formulate his opinions.

[59]        
I explained my reasons for rejecting the plaintiff’s claim under this
head of damages at paras. 231 to 235 of my Reasons for Judgment:

[231]    I have used and applied
the analytical framework suggested in Brown v. Golaiy, supra, to
the case at bar and I find Mr. Lee has failed to persuade me that his
claim for loss of earning capacity is well-founded.

[232]    Contrary
to his assertion that he struggled mightily to complete the CTP at Depot, the
evidence indicates he sought out and took on additional tasks and
responsibilities and notwithstanding these additional burdens, graduated with
glowing references. Moreover, the evidence regarding his performance as a
regular member of the RCMP has been equally positive. All of the reports
on Mr. Lee indicate that he is a valued member who is performing well. On
25 April 2007, Mr. Lee was promoted in rank to a Constable, Level 1.
In my opinion, this indicates that any residual pain or discomfort Mr. Lee
experiences is not impeding his progress within the RCMP and is unlikely to in
the future.

[233]    I am not satisfied that
the nature of the pain associated with his injuries is such that Mr. Lee
has been rendered less capable of earning an income. It is clear on the
evidence, including Mr. Lee’s own evidence, that his physical condition
and symptoms have improved 70% to 80% since the accident. Mr. Lee’s
performance reviews, while at Depot and during his first years as an RCMP
officer, are stellar. Mr. Lee is seen as a future leader who is presently
able to complete all tasks assigned to him in a professional and timely manner.
The evidence clearly does not support Mr. Lee’s claim that he is less
marketable or attractive as a potential employee. On the contrary, based on the
previously mentioned performance reviews I can only conclude that Mr. Lee’s
superiors with the RCMP see him as a very valuable member of the Force and
someone whose career path is a positive one.

[234]    Mr. Lee possesses
a belief that he cannot meet the physical requirements to become a member of
the RCMP’s ERT, Canine Team or Air Marshall Unit. Various experts have adopted
Mr. Lee’s belief and have opined that Mr. Lee will likely not be able
to join those or other units of the RCMP. These opinions, like Mr. Lee’s
belief, are not founded in fact. There is no evidence before me indicating what
the physical criteria are for membership in these or any other unit of the
RCMP. This lack of evidence undermines the experts’ opinions. I reject the
assertion that Mr. Lee is no longer able to take advantage of all job
opportunities.

[235]    As I
am not persuaded Mr. Lee has a permanent partial disability and I am not
satisfied that Mr. Lee’s progression within the RCMP is being or will
likely be hindered by what remains of his injuries, I reject his claim for loss
of future earning capacity.

[60]        
In my opinion, the plaintiff’s claim for loss of future earning capacity
was an exaggerated one that was unsupported by the evidence. The complete
failure of the plaintiff’s claim in this regard as well as its distinct nature
makes it a legitimate consideration for the apportionment of costs.

  Cost
of Future Care

[61]        
The defendants argue that plaintiff exaggerated his claim for future
care costs and for that they should receive a portion of their costs. The
plaintiff submits that the award of $7,500 for this head of damages is a “very
substantial” amount “demonstrating the serious and on-going effects of his
injuries”.

[62]        
My conclusion regarding this head of damages is found at para. 246
of my Reasons for Judgment:

[246]    I am
not satisfied that any of the future care treatments beyond access to a quality
fitness facility and the occasional assistance and advice of a kinesiologist
are necessary in the case of Mr. Lee. I therefore award him $7,500 for
cost of future care.

[63]        
In my opinion, the claim was an unrealistically inflated one that
unnecessarily prolonged and complicated this proceeding. I agree with the
submission of counsel for the defendants that the present situation is analogous
to the one in Bailey, where despite the plaintiff being awarded damages
at trial for the loss of future income, the Court of Appeal denied the
plaintiff his costs for that portion of his claim.

[64]        
In my view, this head of damages is also a candidate for apportionment
of costs.

  Loss
of Housekeeping Capacity

[65]        
The defendants argue this was a distinct issue at trial. I disagree. In
my opinion it was an issue that was interwoven with all of the other evidence
led by the plaintiff regarding his physical condition after the accident.

[66]        
I agree with the plaintiff that the evidence led on this issue would
likely have been presented irrespective of whether this separate head of damage
was particularized in the pleadings.

[67]        
In my opinion, this is not an issue where apportionment of costs is a
consideration.

  Basis
for attributing time to the issues

[68]        
During the course of submission, counsel for the defendants provided the
court with a rough estimate of the amount of trial time and argument devoted to
the various issues and witnesses. According to that estimate, the plaintiff’s
past loss of opportunity to earn income consumed one day and his claim for loss
of future earning capacity consumed six and one-half days. The defendants seek
only a portion of the unspecified amount of trial time devoted to addressing
the plaintiff’s claim for the cost of future care.

[69]        
The plaintiff’s claim for loss of past opportunity to earn wages was
based principally upon his own testimony, as well as that of Mr. Larsen
and Mr. Benning. I have considered how much time the parties devoted
to these witnesses and find myself in agreement with counsel for the
defendant’s estimate on this issue.

[70]        
The plaintiff’s evidence in support of his claims for loss of future
earning capacity and cost of future case consisted of his own testimony as well
as that of Dr. Lee, Dr. Kokan, Dr. Hershler, Mr. Worthington-White,
Ms. Quastel and Mr. Benning. In response to the evidence of Mr. Worthington-White
and Ms. Quastel, the defence submitted and relied upon the expert report
of Mr. Christopher Cook. In my view, the evidence of Mr. Worthington-White,
Ms. Quastel went exclusively to the question of the plaintiff’s ability to
continue working as a police officer, the likelihood of him being able to
compete for other positions within the RCMP, and the future care he would need
to manage his injuries. The only evidence Mr. Benning provided, beyond
that touching on the plaintiff’s past wage loss claim, related solely to the
claim for loss of future earning capacity. The majority of the evidence of Dr. Lee,
Dr. Kokan and Dr. Hershler can be attributed to the plaintiff’s claim
for loss of future earning capacity and cost of future care. However, the
evidence of these three medical witnesses also addressed to a lesser degree the
plaintiff’s claim for general damages for pain, suffering and loss of enjoyment
of life.

[71]        
In my opinion, the amount of trial time and argument devoted to the
evidence of these witnesses on the issues of loss of future earning capacity
and cost of future care is approximately six days.

  Fair
and just result

[72]        
In my opinion, unlike the results in O’Ruairc and Payne,
the plaintiff in the present case was not substantially successful. In this
regard, the present case is more akin to Shearsmith in that there was
divided success.

[73]        
As previously noted in these reasons, the protracted nature of this
litigation is principally attributable to the plaintiff. What should have been
a reasonably straight forward claim for personal injury damages was made
complex and time consuming by the nature, quantity and poor quality of the evidence
the plaintiff attempted to adduce at trial. In this regard I note the plaintiff
had two expert witnesses in the field of occupational therapy. Why one such
expert witness was not sufficient is unclear to me. There was also a
considerable amount of written materials that the plaintiff attempted to place
before the court that were, without much argument from the plaintiff, eventually
ruled inadmissible.

[74]        
In my opinion, the defendants were compelled to expend a significant
amount of time and expense defending against claims that the plaintiff made far
more complicated than they should have been.

[75]        
Having said all of this, I have taken note of the submission of counsel
for the plaintiff regarding the impact my judgment has had on the plaintiff,
both personally and professionally as a young police officer. More to the
point, I have kept in mind the fact that the plaintiff expended a considerable
amount in disbursements and expert witness fees in order to pursue his claim.
Counsel for the plaintiff argues that an award of costs against the plaintiff
would unfairly exacerbate the personal consequences for the plaintiff and
render whatever result he achieved in the litigation nothing more than a
pyrrhic victory.

  Calculating
Apportionment of Costs

[76]        
In Waterhouse v. Fedor, [1987] 13 B.C.L.R. (2d) 186, Legg J.
explained at p. 190 how there are two means of apportioning costs:

I also agree that two methods
may be used in determining “the degree of success”. One method involves the
judge assessing a percentage figure to the relative success of the parties. The
other method involves determining the number of days spent in trial on
“unsuccessful” issues in proportion to the time spent on “successful” issues.
Either way, the relative success of the parties is determined and each party is
entitled to that portion of his own costs, which are then set off against the
other, and the difference, if any, is paid to the party in whose favour the
difference lies.

[77]        
In the present case, either approach to the apportionment of costs
articulated in Waterhouse will yield the same result. In my opinion, approximately
seven out of the 13 days of trial can be attributed to the evidence and
arguments addressing the plaintiff’s claims for loss of past opportunity to
earn wages, loss of future earning capacity and cost of future care. As I am of
the view that success at trial was divided, the fair and just result would be
to apportion costs on a 50/50 basis. That is, the plaintiff will be entitled to
50% of his costs and the defendants will be entitled to 50% of their costs,
both to be set-off one against the other.

[78]        
Moreover, I am denying the plaintiff his disbursements associated with
the evidence of Mr. Worthington-White, Ms. Quastel and Mr. Benning.
Although I had significant difficulties with the evidence of Dr. Lee, Dr. Kokan,
and Dr. Hershler, particularly with respect to the plaintiff’s claims for
loss of future earning capacity, their evidence was marginally helpful
regarding the plaintiff’s claim for general damages and therefore I will grant
him 15% of his disbursements regarding their evidence.

  Issue #2:Terms
of the Order

[79]        
Both sides to this dispute have submitted their respective versions of the
order they say should result from my Reasons for Judgment.

[80]        
In my view there is little difference between the two draft orders,
except for the fact that the defendants’ version includes a reference to the
plaintiff’s claims that were dismissed and correctly identifies that the
parties had leave to make submissions on the issue of costs.

[81]        
In my view the order should incorporate portions of both draft orders
and should reflect the fact that:

1)    the plaintiff
was granted judgment against the defendants;

2)    the plaintiff
was awarded:

i.       $40,000
for non-pecuniary damages

ii.      $1,650
for loss of past income

iii.    $7,500 for
future care costs

iv.   
1,050 for special damages

3)   
The plaintiff’s claims for loss of housekeeping capacity and loss of
future earning capacity were dismissed.

4)   
The parties were granted leave to make submissions on the issue of
costs.

Summary

[82]        
In my opinion, the particular circumstances of this case permit the
court to consider the plaintiff’s claims for loss of past opportunity to earn
income, loss of future earning capacity and cost of future care as separate and
discrete issues. Moreover, there is a clear basis upon which to calculate the
amount of trial time, including argument, that was devoted to these issues.
Finally, apportionment of costs would, given the divided success at trial and
the plaintiff’s pursuit of inflated, exaggerated or unrealistic claims, affect
a just result between the parties. I therefore find the case at bar falls into
that category of “relatively rare cases” where apportionment of costs is
appropriate.

[83]        
What was to have been, and in my respectful view should have been, a 5‑day
trial, practically tripled in length, and much of that is attributable to the
plaintiff and the nature of the evidence he led at trial. I rejected a
significant portion of the plaintiff’s testimony. He was a poor historian of
the facts and was at times deliberately evasive in answering questions. As I
noted at para. 46 of my Reasons for Judgment, but for the detailed and probing
cross-examination of the plaintiff, “…the court would have been left with an inaccurate
impression and understanding of Mr. Lee’s situation and condition.” There
were also significant deficiencies in the evidence of the plaintiff’s expert
witnesses, Mr. Worthington-White, Ms. Quastel, Mr. Benning, Dr. Lee,
Dr. Kokan and Dr. Hershler that only came to light during the course
of extensive cross-examination.

[84]        
The facts in the case at bar, as they relate to costs are, in my view, similar
to those found in Bailey, Plackova, Berston, Shearsmith
and Heppner, in that an inordinate and unreasonable amount of trial time
was consumed by the plaintiff’s pursuit of exaggerated claims that were
eventually rejected. The length of the trial was also made more difficult and
prolonged as a result of the plaintiff’s credibility issues and his failure to fully
and frankly disclose relevant information to his medical experts.

Order

[85]        
For all the foregoing reasons, I order the following:

1)   
The plaintiff is entitled to 50% of his costs and the defendants are
entitled to 50% of their costs, to be set-off one against the other.

2)   
The plaintiff is denied all of his disbursements relating to the
evidence of Mr. Worthington-White, Ms. Quastel, and Mr. Benning.
The plaintiff is granted 15% of his disbursements relating to the evidence of Dr. Lee,
Dr. Kokan and Dr. Hershler.

3)   
The defendants are entitled to their disbursements relating to the
evidence of Mr. Christopher Cook.

4)   
The order resulting from my Reasons for Judgment is as set out at
para. 81of these reasons.

5)   
The defendants are entitled to their costs of this hearing.

“G.R.J.
Gaul, J.”