IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20121023

Docket: M062847

Registry:
Vancouver

Between:

Dallas Lynn
Plensky

Plaintiff

And

Marco Antonio Di
Biase and Lina Vassalo

Defendants

Before:
The Honourable Madam Justice Ross

Reasons for Judgment

[1]            
This is an application for directions pursuant to Supreme Court Civil
Rules, R. 14-1(7) brought by the defendants concerning two issues
related to costs:

(a)      whether
the plaintiff is entitled to 100% for costs or to 93% pursuant to s. 2 of
the Negligence Act, R.S.B.C. 1996, c. 333; and

(b)      what
is the disposition with respect to costs concerning the s. 25 application?

[2]            
This was a personal injury action arising from a motor vehicle accident
that occurred on July 20, 2004. The action was commenced on July 20, 2006. The
trial commenced in March 2010 and lasted 13 days before a jury. The jury found
the defendants liable and apportioned liability 93% to the defendants and 7% to
the plaintiff. The jury’s award of damages was in excess of either party’s
pretrial offers with respect to settlement. The jury awarded $327,500 for non-pecuniary
loss, $13,000 special damages, $61,800 for cost of future care and $200,006 for
loss of capacity for a total award of $608,300.

[3]            
On April 15, 2010, the defendants filed a notice of appeal.

[4]            
On October 14, 2010, the defendants brought an application for a reduction
pursuant to then s. 25 of the Insurance (Motor Vehicle) Act, R.S.B.C. 1996,
c. 231. The defendants’ position in advance of the application was that
the reduction should total $47,075. At the application the defendants took the
position that the reduction should be $32,000. The plaintiff’s position was
that the reduction should be $5,000. By reasons indexed at 2010 BCSC 1649, a $10,000
deduction was ordered.

[5]            
On April 21, 2011, an order with respect to the trial was entered. The
order contained the following provisions:

AND UPON the jury having assessed liability by apportioning
7% of the fault to the plaintiff and 93% of the fault to the defendants;

…

AND UPON further hearing on October 14, 2010 THIS COURT
ORDERS THAT the award should be reduced by the sum of $10,000 representing the
amount to be paid to the plaintiff in the future as no-fault benefits, that sum
is deducted from the plaintiff judgment reducing the damages to the sum of
$555,719;

…

THIS COURT FURTHER ORDERS THAT
the plaintiff recover against the defendants costs to be assessed and double the
assessed costs from the 18^th day of February 2010 for the tariff
items covering preparation for trial, trial, and proceedings after trial at
scale B, plus disbursements.

[6]            
On September 12, 2011, the appeal was settled. The agreement was that
the plaintiff would receive $350,000 plus assessable trial costs and
disbursements.

[7]            
There were subsequent negotiations between plaintiff’s counsel and the
adjuster for ICBC to settle the costs. During these negotiations, there was no
mention of any deduction from the costs for contributory negligence.

[8]            
An application was brought on March 30, 2012 by the plaintiff for post-judgment
interest. That application was dismissed with no costs being awarded to either
side.

[9]            
On July 13, 2012, there was a prehearing conference with respect to the
assessment of costs. At the prehearing conference, the defendants raised the
issue of the deduction from the plaintiff’s costs with respect to apportionment
up for contributory negligence. This was an issue that was directed to be dealt
with by the trial judge.

[10]        
With respect to the issue of the costs in relation to the s. 25
application, it was the defendants’ position that they were entitled to costs
on the basis that they were largely successful. The plaintiff’s position was
that she is entitled to costs because the result was closer to the position
that the plaintiff had advocated at the hearing. In addition, the plaintiff
submitted that the order was entered after the decision. That order provided
that the plaintiff would receive costs of post-trial proceedings. Accordingly,
the plaintiff submits the court is functus with respect to this issue.

[11]        
The defendants took the position that the court cannot be deprived of
discretion with respect to costs by the provision of an order entered by the
parties and notes that the plaintiff was not awarded costs of the post-judgment
interest application.

[12]        
I agree with that submission as a general proposition, however, in this
case, the application in question had been heard and decided before the order
was entered. The order made specific reference to the result of that
application. I agree in these circumstances with the submission of the
plaintiff that the court is functus, and that the plaintiff is entitled
to her costs with respect to the s. 25 application. In any event, it is my
view that the plaintiff would be entitled to the costs of that application on
the basis of having enjoyed substantial success.

[13]        
With respect to the question of whether the plaintiff is entitled to
100% of her costs, it was the position of the defendants that, pursuant to s. 3(1)
of the Negligence Act, liability with respect to costs is to be in the
same proportion as liability with respect to damages. Section 3(1) of the Negligence
Act provides:

Apportionment of liability for costs

3  (1) Unless
the court otherwise directs, the liability for costs of the parties to every
action is in the same proportion as their respective liability to make good the
damage or loss.

[14]        
The plaintiff took the position that she was entitled to 100% of her
costs on the basis of contract, the doctrine of functus officio or, in
the alternative, that there were sufficient reasons to derogate from the Negligence
Act in the circumstances of the case.

[15]        
With respect to the argument in contract, the plaintiff submitted that
the conduct of the parties, both before and after reaching the agreement,
together with the practice of wording costs orders in the province, make it
clear that it was the intention of the parties the defendants were to pay 100%
of the plaintiff’s assessable costs. I have reviewed the materials submitted in
support of this application and agree with the submission of the defendants, that
there is no evidence of an express agreement that the plaintiff would receive 100%
of her costs. The plaintiff made reference to an email exchange that was a
without prejudice settlement negotiation. However, in my view, that document
cannot be properly regarded with respect to the determination of the agreement
reached by the parties. I find that there was no agreement that the plaintiff
was entitled to recover 100% of her costs.

[16]        
With respect to the second argument, that the court is functus, I
note that pursuant to the order, costs are to be assessed and further that
reference is expressly made in the order to the division of liability with 7%
attributed to the plaintiff. Pursuant to the provisions of the Negligence
Act, where the defendant suffers no damage or loss, but liability is
divided, the defendant must pay the plaintiff the same proportion of the
plaintiff’s cost as the defendant is liable for the plaintiff’s damages and the
plaintiff is not liable to pay any portion of the defendant’s costs: see Flatley
v. Denike (1997), 144 D.L.R. (4^th) 450 (B.C.C.A.). In these
circumstances, I conclude that the correct interpretation of the order is that
the plaintiff’s costs to be assessed are the 93% of costs, payable by the
defendant, pursuant to the operation of the Negligence Act.

[17]        
Given that the order has been entered, in my view the application that
is too late is the application brought in the alternative by the plaintiff for
the court to exercise its discretion to award the plaintiff 100% of her costs, notwithstanding
the finding of 7% contributory fault. In my view, that is an application that
should have been brought before the order was entered. In any event, it is my
view that this is not a case in which it would be appropriate for the court to
exercise its discretion to make the order sought by the plaintiff.

[18]        
It is clear that s. 3 confers on the court broad discretion to
depart from the general rule: see Peters v. Davidson (1981), 125 D.L.R.
(3d) 753 (B.C.S.C.). The principal consideration for a court in deciding
whether to exercise the discretion is whether the imposition of the general
rule would be unjust in the circumstances of the case: see Sayers v. Fediuk
(1992), 77 B.C.L.R. (2d) 117 (S.C.). In determining whether an unjust result
would occur due to the imposition of the costs rule, the court is to consider
the nature and conduct of the litigation: see Logeman v. Rossa, 2006
BCSC 692.

[19]        
In the present case there is nothing untoward about the conduct of the
litigation. The defendants made an offer to settle on December 30, 2009 in the
amount of $114,500. This was a case in which both liability and damages were at
issue, and in my view, the defendants’ offer in the circumstances represented a
serious effort to compromise the litigation. In the result, the plaintiff
secured a substantial recovery. This was a relatively lengthy and difficult
trial. However, the reduction for the contributory fault is modest, certainly
not such that would effectively defeat the plaintiff’s substantial recovery.

“Ross
J.”