IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130513

Docket: M106273

Registry:
Vancouver

Between:

Paul Boutin

Plaintiff

And

Jennifer MacPherson
and Elinor Carol MacPherson

Defendants

Before:
The Honourable Madam Justice Baker

Reasons for Judgment

(Re: Costs)

[1]            
The trial of this personal injury action was heard January 3 to 5,
2012.  On December 4, 2012, I issued Reasons for Judgment awarding Mr. Boutin
non-pecuniary damages of $25,000; damages for past wage loss of $3,038 (before
adjustment to take into account income tax payable); and special damages of $3,000. 
After the adjustment for income tax, defendants’ counsel calculated the total
of the awards to come to $29,801.53.  In the final paragraph of my Reasons, I
gave the parties leave to file written submissions on the issue of costs, such
submissions to be filed no later than January 31, 2013.

[2]            
On January 25, 2013, counsel for the defendants filed the affidavits of
Daniela Re and Nandia Eliopoulos, sworn January 21 and January 24, 2013,
respectively; together with written submissions and a book of authorities. 
Written submissions from plaintiff’s counsel, together with an affidavit of
Rita Della Serra sworn March 7, 2013, were not filed until March 7, 2013.

[3]            
This was an action brought pursuant to Rule 15-1, the rule relating to
“Fast Track Litigation”.  Rule 15-1(15) provides that unless the court otherwise
orders or the parties consent, the amount of costs, exclusive of disbursements,
that a successful party may recover for a trial that lasts more than two days
is $11,000.

[4]            
In this case, the defendants submit that costs payable to the plaintiff
should be capped at a lower figure − $6,500 would be appropriate, the
defendants submit − and that the plaintiff should be denied recovery for
disbursements incurred after December 30, 2011.  The defendants rely on Rule
14-1(14).  That rule specifies that a party otherwise entitled to costs may be
denied costs that result from an improper or unnecessary act or omission in the
conduct of the litigation.

[5]            
In this action, the defendants submit, the plaintiff failed to produce
documents relating to his claim for lost wages in a timely fashion and failed
to comply with deadlines ordered at a Trial Management Conference held on
November 23, 2011 for the production of documents and provision of particulars.

[6]            
The plaintiff submits that although the plaintiff failed to meet the
deadlines for compliance with the orders made at the Trial Management
Conference, he did eventually provide the documents and particulars.   The
plaintiff submits that defendants’ counsel, and the defendants’ insurer, had an
adequate opportunity to assess the plaintiff’s claim prior to the commencement
of trial on January 3, 2012.

[7]            
Settlement offers were exchanged between the parties.  The defendants
made an initial offer to settle on October 28, 2011 for $13,000 and costs.  On
December 19, 2011, the defendants increased their offer to $22,000 plus costs. 
On December 23, 2011, the plaintiff offered to accept $29,000 plus costs.

[8]            
The affidavits do disclose that the plaintiff was dilatory in complying
with his obligations to list and produce documents and to provide particulars
of his claims for past income loss and special damages.  As is not uncommon in
cases where defendants’ counsel is being instructed by a representative of the
defendants’ insurer, Ms. Daniela Re, a claim adjuster employed by the Insurance
Corporation of British Columbia (“ICBC”), had some direct communication and
correspondence with plaintiff’s counsel.

[9]            
The motor vehicle accident in which the plaintiff was injured happened
on January 23, 2009.  Mr. Boutin gave a statement to an ICBC adjuster on
January 27, 2009 in which he stated that he had not missed any work to that
date as a result of injuries sustained in the accident.  On August 13, 2009,
Ms. Re wrote to Mr. Fahey, Mr. Boutin’s counsel, asking him whether the
plaintiff had missed any time from work due to the accident.  Having received
no response, she wrote to Mr. Fahey again on October 13, 2009 asking for a
reply to her earlier correspondence.  Mr. Fahey did not respond.

[10]        
In the affidavit of Ms. Della Serra, a paralegal employed by Mr. Fahey,
Ms. Della Serra deposed that Mr. Fahey has told her that as a result of
unsatisfactory dealings with Ms. Re in the past Mr. Fahey “…has a general
policy of not corresponding directly with Ms. Re and instead deals directly
with counsel on litigated matters”.

[11]        
In my view, Mr. Fahey should have responded to Ms. Re’s correspondence,
if only to communicate to her that he would only respond to communications from
defendants’ counsel.   Instead, on the evidence before me, Mr. Fahey simply
ignored Ms. Re’s requests for information and did not provide the requested
information to her, or to defendants’ counsel.

[12]        
Having received no reply from Mr. Fahey, Ms. Re communicated directly
with Mr. Boutin’s employer.  On November 4, 2009, she received a “Certificate
of Earnings” from the City of North Vancouver confirming that Mr. Boutin had
not missed any time from work.

[13]        
On June 21, 2011, Mr. Rafi delivered a Notice to Admit to Mr. Fahey,
asking that Mr. Boutin admit that he had not sustained any loss of earnings, loss
of capacity, or loss of opportunity to earn income because of the accident.

[14]        
In his Reply to the Notice to Admit, dated June 23, 2011, Mr. Boutin
declined to make the requested admissions and stated that he had lost wages;
that he had lost the opportunity to earn overtime wages; and that he did not
have the full capacity to earn income.

[15]        
On July 13, 2011, Mr. Rafi wrote to Mr. Fahey requesting particulars of
the claimed loss of earnings, loss of opportunity and loss of capacity.  No
reply was received.

[16]        
At some point, counsel for the defendants had taken out an appointment
to examine Mr. Boutin for discovery.  On October 27, 2011, Ms. Re instructed
Mr. Rafi to cancel the examination for discovery.  On the same date, Mr. Rafi
wrote to Mr. Fahey asking for medical records and for Mr. Boutin’s 2009
and 2010 tax returns; and reminding Mr. Fahey that no reply had been received
to the July 13, 2011 demand for particulars of Mr. Boutin’s claim for lost
income/opportunity/capacity.

[17]        
A Trial Management Conference took place on November 23, 2011 before
Justice Blair.   Justice Blair ordered that Mr. Boutin advise the defendants,
no later than November 30, 2011, if he was pursuing a claim for loss or
earnings and loss of opportunity, and if so, to provide particulars.  Mr.
Boutin was also ordered to provide particulars of his claim for special damages
by November 30, 2011.

[18]        
Mr. Boutin did not comply with these deadlines.  On December 5, 2011,
Mr. Rafi wrote to Mr. Fahey confirming that the deadlines set by Justice
Blair had passed.  On December 7, 2011, Ms. Della Serra sent an e-mail to Mr.
Rafi attaching particulars of Mr. Boutin’s special damages claim.  Also on
December 7, Ms. Della Serra sent an e-mail to Mr. Rafi providing particulars of
Mr. Boutin’s claim that he had lost the opportunity to work overtime due to the
accident injuries.

[19]        
The particulars did not include information that in November 2011,
management staff at the City of North Vancouver (Mr. Boutin was part of
management staff) had been informed that all overtime hours earned each
calendar year had to be taken as “time off” by March 31 of the following year,
or would be paid out at the employee’s current rate of pay.  Employees had been
provided with a memorandum dated November 9, 2011, describing the changes to
the procedure for banking overtime on the part of “exempt” employees.  The
defendants did not learn of this change in policy until January 4, 2012, while
the trial was underway, when Mr. Rafi’s paralegal, Ms. Eliopoulos, and Ms.
Re made inquiries of the Human Resources officer at the City of North
Vancouver.

[20]        
The plaintiff did not provide the defendants with his List of Documents
until December 19, 2011.  According to the List of Documents, the earliest
production date for any of the listed documents was December 13, 2011.  The
November 9, 2011 City of North Vancouver memorandum was not specifically listed
on the List of Documents, although one of the documents listed is described as
“Letter from Corp. of City of North Vancouver with HR file attached”.

[21]        
Plaintiff’s counsel submits that the plaintiff’s failure to comply with
the orders made on November 23, 2011 is essentially irrelevant because, he
submits, the defendants were not prejudiced by the delay.  He submits also that
he had no obligation to respond to requests for information because the
defendants could have used the Rules of Court to force compliance.

[22]        
Rule 15-1 is designed to provide an efficient, expedited and less
expensive means for parties to deal with matters that will require few days of
trial.  In general, actions brought under the Rule tend to involve smaller
amounts and the hope is that by utilizing the Rule, some interlocutory
procedures may be avoided, and the litigation streamlined, resulting in lower
costs.  If parties do not cooperate and require interlocutory applications to
be brought to enforce production of documents and particulars, or require
parties to obtain through examination for discovery particulars and information
that should be readily provided, the cost-savings possible through the Rule
will rapidly be eroded and the Rule’s usefulness eliminated.

[23]        
I note also that the fact that a party cannot clearly demonstrate
“prejudice” arising from another party’s failure to comply with a court order
does not mean there should not be some sanction for the failure to comply.

[24]        
In the circumstances of this case, there was failure to comply in a
timely way with the court orders made at the Trial Management Conference; and
the particulars and documents ordered to be produced should have been delivered
well in advance of the Trial Management Conference.  Earlier disclosure might
well have led to more efficient conduct of the trial.

[25]        
In the circumstances, the plaintiff’s costs shall be fixed at $9,500,
the costs specified by Rule 15-1(15(b), as if the trial had taken only two days
rather than three.  The plaintiff shall, however, be entitled to his
disbursements, including disbursements after December 31, 2011.  Each party
shall bear his or her own costs of the submissions about costs.

“W.G. Baker J.”