IN THE SUPREME COURT OF
BRITISH COLUMBIA

Date: 20121130

Docket: M106122

Registry:
Vancouver

Between:

Ali Ostadsaraie

Plaintiff

And

Hoda Shokri

Defendant

Before:
District Registrar Cameron

Oral Reasons for Decision

[1]            
This assessment of costs follows upon the settlement of a personal
injury claim subject to Rule 15-1 (Fast Track Litigation) approximately 55 days
before the scheduled trial date. Disbursements are not in issue.

[2]            
There has been some recent judicial consideration of whether or not the
costs that should be awarded to the plaintiff in these circumstances should be
reduced from what is called the “cap amount” or $6,500, for a case that settles
before trial to take into account that not all preparation has been done to
have the matter ready for trial and that should be reflected in some reduction
of the $6,500 “cap amount”.

[3]            
In Gill v. Widjaja, 2011 BCSC 951 (Gill), Master Baker,
sitting as a Registrar, was dealing with a similar situation in terms of
timeline. In that case, a matter had been scheduled for trial for May 2, 2011,
for three days, but just short of two months before trial, on March 3, 2011,
and just six days before a scheduled judicial settlement conference, the
parties settled the case. The plaintiff claimed the maximum of $6,500. The
argument made by the defendant was that some, but not all, of the necessary
preparation for trial had been completed and that some reduction was in order.

[4]            
Master Baker concluded that in the circumstances a significant amount of
preparation had been done and he did not find there were any special
circumstances that would warrant any disallowance of the full amount, or $6,500
and that is the award that he made. At paragraph 17 he said:

I start with the assumption that,
once the portion attributed to the first day of trial is deducted, the balance
is allocated to preparation. It would take compelling facts and circumstances
to depart from that simple principle. And that simple principle should be
applied when one recalls that the costs provisions of Rule 15-1 are intended to
be summary in nature and to avoid assessments such as this.

I agree with that proposition.

[5]            
Mr. Justice Harvey heard the appeal of Master Baker’s decision in Gill.
His Lordship concluded:

[49]      The Rule, as written, gives the registrar wide
discretion in determining the appropriate tariff amount. Master Baker was aware
of the steps taken in the litigation and the date of settlement relative to the
trial date.

[50]      Having regard to the aforementioned test that I
must apply, I am not of the view that an error in principle has been
demonstrated nor do I find that the master was clearly wrong in his
determination that the appropriate cost of tariff amount was $6,500.

[51]      The express purpose of Rule 15-1 is to streamline
the process both for trial and, presumably, taxation of costs. Parsing out the
details in each action where the amounts do not apply is not, in my view, the
proper course. Indeed, were it, in this action there was a settlement
conference which no doubt necessitated some significant preparation, much like
trial preparation, and, as well, a trial management conference. Each of those
events resulted in discussions leading to the settlement of this matter.

[52]      In those circumstances
I find no error in principle such as to interfere with the finding of the
master.

[6]            
More recently, Her Honour Registrar Sainty considered the issue in Benz
v. Coxe, 2012 BCSC 1043. In her reasons for decision, Registrar Sainty refers
to an earlier decision of her own in Cathcart v. Olson, 2009 BCSC 618
and refers to both the decision of Master Baker and Mr. Justice Harvey in Gill.
Her Honour concludes that there still is scope for a review of the
circumstances of the case to determine whether or not the full amount of the
cap ought to be awarded; in other words, whether there should be some
consideration of the stage of preparation as viewed against the maximum amount
allowable for a case that settles in fast track short of trial, which is
$6,500.

[7]            
In Benz, Registrar Sainty said:

[22]      In my opinion, this case was fairly far along the
course. A mediation had been conducted and it was after the mediation that the
matter settled. On that basis, it is similar to the case before Master Baker in
Gill v. Widjaja where His Honour found that, because the parties had
prepared for mediation (which in itself requires fairly comprehensive
preparation), the majority of the preparation required for trial would have
taken place even though the matter settled, in that case, some seven weeks
before trial.

[23]      I agree that this case
is very similar to the case before Master Baker, and I find that there is no
reason for me to depart from the idea that the case would have been mostly
ready to go to trial. One prepares for mediation as if one is preparing for
trial. The few small — what I call housekeeping matters — that remained to be
done — the TMC brief for example — could have easily been composed from the
materials put together for the mediation. All of those things and the small
attendances required with them would not really have added to the required
level of preparation. Accordingly, I am going to award the plaintiff the full
amount of the cap in this case — the $6,500.

[8]            
In this case, Ms Neathway had done a substantial amount of
preparation and delivered a settlement offer that resulted in a settlement of
the case some 55 days before trial. There was a housekeeping matter left to be
done, a trial management conference – but given the settlement, it did not occur.

[9]            
Ms Neathway had delivered all of her expert reports and had
prepared and completed all of the discovery in readiness for trial. She was
frank to say that she would have needed to interview again one or more of the
witnesses that would be called at trial and of course complete the final
preparations for her client to give his evidence at trial. Nonetheless, a
substantial amount of the preparation had in fact been completed by the time
the settlement was made and in the circumstances it is appropriate to award the
plaintiff the full amount of the cap, being $650.

[10]        
MS NEATHWAY: There was an offer to settle costs in an amount under
the cap as well. I don’t know if my friend will argue. She hasn’t had time to
consider it. I believe it was sent Tuesday. I do not have the outgoing
correspondence, unfortunately, with me, so I will let her make any submissions
on that.

[11]        
MS THIESSEN: I have no submissions.

[12]        
THE COURT: All right. I will award five units for costs. To be clear
then, that is $550 plus HST.

“District
Registrar Cameron”