IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130208

Docket: 10-0942

Registry:
Victoria

Between:

Sarah Wan

Plaintiff

And

Frank Smith and Darryl
Falconer and John Doe as the
Administrator/Executor of the Estate of Frank Smith

Defendants

Before:
The Honourable Mr. Justice R. Punnett

Reasons for Judgment

[1]            
In this fast track personal injury claim the plaintiff applies for an
order for “directions and/or settlement of the plaintiff’s costs”.  The action
is subject to rule 15-1 of the Supreme Court Civil Rules.

Background

[2]            
The plaintiff was involved in a motor vehicle accident on March 27,
2008.  The trial was set for May 7, 2012 under Rule 15-1, the Fast Track
Litigation process.  Plaintiff’s counsel and defence counsel attended at the
courthouse for trial.  At approximately 10:00 a.m. on the morning of trial
defence counsel presented a new offer of $60,000 in new money plus costs and
disbursements.  As a trial judge was not available the trial was adjourned;
however, shortly thereafter another trial judge became available.  In the
meantime, the plaintiff accepted the settlement offer.  Plaintiff’s counsel
sent a letter to defence counsel confirming the settlement in the sum of $60,000
in new money plus taxable costs and disbursements.

[3]            
It is common ground that the letter accepting the offer did not
particularize or qualify the issue of costs in any manner.  It is also common
ground that the parties were prepared to proceed to trial that morning.

[4]            
After accepting the offer plaintiff’s counsel presented a draft bill of
costs totalling $17,067.31 under Schedule B, not Rule 15-1.  Defence counsel objected
on the basis that costs were payable under Rule 15-1 not the standard tariff.

[5]            
It is not disputed that the terms of settlement were that the action be
dismissed with costs to the plaintiff.  To date an order has not been prepared
or entered.  Defence counsel confirms that they will consent to an order on the
settlement terms.

Position of the Plaintiff

[6]            
The plaintiff acknowledges that the terms of settlement were clear, but
despite this asks the court to settle the issue of costs.  That is, the
plaintiff argues that this Court can exercise its discretion on the issue of
costs notwithstanding the clear terms of settlement and, further, that an
application of this nature can be made despite the fact that the normal
procedure is to enter the order and tax the costs before the registrar.  The
plaintiff seeks an order of this Court that the plaintiff is entitled to costs
that include the first day of trial.

Position of the Defendants

[7]            
The defendant objects to the procedure taken by the plaintiff in
bringing this motion.  She submits that before an argument can be made as to
assessment of costs, an entered order is required first to trigger an appointment
to tax costs.  She submits the plaintiff is attempting to have this Court re-write
the terms of settlement by intervening before the order is entered.  The gist
of her submission is that this Court has no jurisdiction to entertain the
plaintiff’s application because the settlement terms were unambiguous.

[8]            
She also submits that under Rule 15-1 where the trial has not commenced the
cap for costs is $6,500 and that the plaintiff is not entitled to any amount
for the first day of trial (Gill v. Widjaja, 2011 BCSC 951).

Discussion

[9]            
Rule 14-1 (21) addresses the issue of the assessment of costs as
follows:

(21)      Except as provided in subrule
(26), a person who seeks a review of a bill or an examination of an agreement
under the Legal Profession Act or who seeks to have costs assessed must

(a)        obtain a date for an appointment
before a registrar,

(b)        file an appointment in Form 49
to which is attached

(i)         the bill to be reviewed,

(ii)        the agreement to be examined,
or

(iii)       the bill of costs to be
assessed, and

(c)        at least 5
days before the date of the appointment, serve a copy of the filed Form 49
appointment and any affidavit in support,

(i)         in the case
of a bill to be reviewed, on the lawyer whose bill is to be reviewed, on the
person who is charged with the bill or on the person who has agreed to
indemnify the person charged, as the case may be,

(ii)        in the case
of an agreement to be examined, on the lawyer who is a party to the agreement
to be examined, or

(iii)       in the case
of a bill of costs to be assessed, in accordance with subrule (25).

[10]        
As noted earlier, instead of applying to have costs assessed, the
plaintiff brings this application.  In doing so the plaintiff relies on Rule
14-1(1) and 15-1(15).

[11]        
Rule 14-1 provides:

(1)        If costs are payable under these Supreme Court
Civil Rules or by order, those costs must be assessed as party and party costs
in accordance with Appendix B unless any of the following circumstances exist:

(e)        a notice of fast track action
in Form 61 has been filed in relation to the action under Rule 15-1, in which
event Rule 15-1(15) to (17) applies;

[12]        
Given the action is a fast track action Rule 15-1(15) applies:

(15)      Unless the court otherwise orders
or the parties consent, and subject to Rule 14-1 (10), the amount of costs,
exclusive of disbursements, to which a party to a fast track action is entitled
is as follows:

(a)        if the time
spent on the hearing of the trial is one day or less, $8 000;

(b)        if the time
spent on the hearing of the trial is 2 days or less but more than one day, $9
500;

(c)        if the time
spent on the hearing of the trial is more than 2 days, $11 000.

[13]        
It is not disputed that the fast track rule governs.  The plaintiff asks
the court to exercise its discretion under the fast track rule.  Her counsel
refers to the wording in 15-1(15) “unless the court otherwise orders” in
support.  The defendant submits that the reference to “the court” in that
section is a reference to the trial court not this Court in chambers.  That is
that cost awards are within the discretion of the trial court.  Further they
submit that the offer and its acceptance were clear and the costs referenced in
the settlement are to be awarded pursuant to Rule 15-1.

[14]        
The difficulty with the plaintiff’s submission is counsel’s letter
confirming settlement responds to the defendant’s offer of costs.  That offer
was clearly for costs under the fast track rule.  In my view the plaintiff
cannot now seek to redefine what was meant by “costs”.  It is inappropriate for
the court to now vary the agreed upon terms of settlement.

[15]        
As a result since the parties cannot agree on whether the plaintiff is
entitled to costs for the first day of trial, the order evidencing the agreed
upon settlement should be entered and the matter taxed.  It is at the taxation
that the plaintiff can address the issue of any deviation from the cap.

[16]        
As a result I need not address the issue of whether the plaintiff was
entitled to costs for the May 7, 2012 date of trial.

[17]        
The defendants are entitled to their costs of this application.

“Punnett J.”