IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130531

Docket: M103619

Registry:
Vancouver

Between:

Gohar Alam Sheikh

Plaintiff

And

Jason Bradley
Struys

Defendant

Before:
The Honourable Madam Justice Fitzpatrick

Oral Reasons for Judgment

In
Chambers

THE COURT: The defendant, Jason Struys, applies to
determine the level of costs awarded to him after a successful defence of this
action.

Background

[1]            
The plaintiff, Dr. Gohar Sheikh, claimed damages arising from a
motor vehicle accident in 2009. The matter proceeded to trial before me
commencing June 4, 2012. Reasons were issued July 18, 2012: Sheikh v. Struys,
2012 BCSC 1071 (the “Reasons”). The claim was dismissed on the basis that Dr. Sheikh
had not proven liability on the part of Mr. Struys. In light of my finding
that there was no liability, I did not address the various damage issues in the
Reasons.

[2]            
At para. 65 of the Reasons, the action was dismissed with costs in
favour of Mr. Struys. It appears that counsel were somewhat uncertain as
to what that meant, particularly in relation to disbursements. I have since
clarified with counsel that my order was that “costs” in favour of Mr. Struys
would include both what is ordinarily thought of as the costs portion as well
as disbursements arising from the action. Recently, in Gonzales v. Voskakis,
2013 BCSC 675 at paras. 61-64, I discussed various British Columbia Court
of Appeal authorities which confirm that a reference to “costs” is generally
considered a reference to not only the costs portion, but also to
disbursements.

[3]            
The crux of the issue on this application arises from the fact that the
action was commenced and brought to trial as a fast-track proceeding under Supreme
Court Civil Rule 15-1. Rule 15-1(15) provides:

Costs

(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.

[4]            
The Rule provides that trials that take longer than two days are subject
to having the costs portion capped at $11,000. In this action, the trial was
completed in four days.

[5]            
Mr. Struys therefore applies under Rule 15-1(15) for an order that
the court exercise its discretion to award costs in excess of $11,000. Mr. Struys
seeks an additional $1,500 for the additional day of trial beyond the notional
“third day” amount set out in Rule 15-1(15)(c). Mr. Struys submits that
the subrule, in essence, anticipates a lump-sum daily amount of $1,500. Accordingly,
Mr. Struys is seeking a lump-sum amount of $12,500 for costs, which, as I
said earlier, would be in addition to disbursements and taxes.

[6]            
Dr. Sheikh opposes the application.

Discussion

[7]            
I will generally summarize the course of the litigation. The notice of
civil claim was filed in July 2010 under Rule 15-1. The response was filed
September 2010. Although counsel exchanged correspondence concerning the
appropriateness of the matter being heard under Rule 15-1, nothing further was
resolved in that respect. Examinations for discovery of both parties were
conducted under the limits under that Rule. In May 2011, the notice of trial
was filed, indicating a four-day trial. At the trial management conference in
April 2012, the parties were still essentially agreed that four days was
appropriate as the trial time estimate. On May 7, 2012, the trial certificate
was filed, again indicating that the trial estimate of the plaintiff, at least,
was still four days. In fact, as I have already indicated, the trial did take
place within four days.

[8]            
Those were a very full four days of trial. The plaintiff’s case, which
involved calling Dr. Sheikh and his medical doctor, took approximately two
and a half days to complete. The defence called various witnesses, including a
chiropractor and various co-workers. The parties’ submissions were completed
very late in the day on the fourth day. There was also a minor matter that
required further submissions by counsel after the conclusion of the trial
itself.

[9]            
Mr. Struys’ application for the further costs of $1,500 is based on
his contention that there are special circumstances that would allow this Court
to exercise its discretion to order an increased amount.

[10]        
In Anderson v. Routbard, 2007 BCCA 193, Madam Justice Prowse reviewed
Rule 66, the predecessor rule to Rule 15-1. She concluded that the court may
exercise its discretion to award costs other than what is provided in that Rule
in the event that special circumstances are found. In that case, the special circumstance
was found to be an offer to settle that had been made by one of the parties. In
terms of calculating what further amount might be awarded, Prowse J.A. adopted
the method from Mr. Justice Macaulay’s decision in Duong v. Howarth,
2005 BCSC 128. In Duong, Macaulay J. arrived at a mathematical
adjustment based on what was considered to be the daily rate in terms of either
adding that amount if there were special circumstances or, as may be
appropriate, deducting from the capped amounts set out in that subrule.

[11]        
In the later decision of Majewska v. Partyka, 2010 BCCA 236, the
Court of Appeal had reason to revisit this issue. In that case, the issue was
whether the trial judge had correctly ordered tariff amounts in favour of the
plaintiff in place of the capped amounts under Rule 66. The court stated:

[17]      Rule 66(29) contributes
to those objectives by providing for lump sum costs. The limits it sets out are
not designed with the intention of depriving a successful litigant of costs she
might obtain under the usual tariff, but with the objective of avoiding the
time and expense of calculating tariff items and proceeding through a taxation:
Duong Anderson

[12]        
Madam Justice Neilson in Majewska confirmed that special
circumstances must be found in order to depart from the normal capped amounts.
At para. 19, she specifically noted that “[m]any decisions have now
recognized that an offer to settle or a trial extending beyond two days are
special circumstances that justify an award of costs that exceeds the limits” in
the Rule. In Majewska, the trial had been anticipated to complete
in two days, but in fact took three and a half days.

[13]        
The other circumstance that was identified in Majewska as a
possible special circumstance related to the complexity of the matter: para. 31.

[14]        
The court in Majewska also adopted what I would call the
calculation approach that was formulated by Macaulay J. in Duong, and
adopted and applied in Anderson in terms of adding this notional daily
amount to the capped amounts. At para. 33, Madam Justice Neilson also referred
to this approach bringing “desirable consistency and predictability to costs
awards following fast track litigation”.

[15]        
I would also briefly note that the court in Majewska took pains
to identify that there might also be “exceptional circumstances” which could
justify the court awarding costs in excess of the capped amounts in Rule 15-1: para. 38.
Mr. Struys does not seek an order that costs be awarded based on the
tariff item on the basis that exceptional circumstances exist. Rather, he
contends that there are special circumstances which allow the court to depart
from the capped amounts and, per the approach in Anderson and Majewska,
take what is essentially a calculation approach based on the capped amounts.

[16]        
In Bradley v. Groves, 2010 BCCA 361 at para. 42, the court confirmed
the approach from both Anderson and Majewska to allow higher
amounts if there are special circumstances. The court also confirmed the
calculation approach in the event that special circumstances are found.

[17]        
Mr. Struys advances the argument that there are two special
circumstances here: (i) the complexity of the matters addressed at trial; and (ii)
the length of the trial exceeded the three days contemplated under the Rule.

[18]        
Dealing with the matter of complexity first, as I said, this was a motor
vehicle case. Liability was certainly an issue; in fact, it was the deciding
factor in this case. Beyond the liability issue, however, there were also
significant issues relating to the damage claim advanced by Dr. Sheikh. Specifically,
there were significant issues concerning causation that arose principally by
reason of Dr. Sheikh’s substantial pre-accident history. For example, he
had suffered various injuries while mountain bike riding. There were also various
post-accident incidences that raised the issue whether the motor vehicle
accident was continuing to have any negative effect on him at the time of trial.
Dr. Sheikh, who is a practicing chiropractor, made certain claims that his
injuries from the motor vehicle accident affected his ability to work.

[19]        
The damage claims were more straightforward than they might have been. Dr. Sheikh
limited his damage claims to non-pecuniary damages of approximately $30,000 and
special costs of just over $1,000. There was no past wage loss claim, nor was
there a future wage loss claim, including any loss of capacity claim. Nevertheless,
causation was certainly a significant issue at the trial and necessitated the
defence having to call various witnesses, including Dr. Sheikh’s own
chiropractor and various co-workers, to give evidence on what they knew of his
injuries and his course of treatment.

[20]        
Dr. Sheikh says that the matter was not complex. At first blush,
that appeared to be the case. In my view, however, the matters that were raised
at trial (but not addressed in the Reasons) did rise to a certain level of
complexity that one might not ordinarily expect to see in fast-track litigation.
Again, this principally arose from the causation issues, which were substantial
issues at the trial and which ate up a substantial amount of time both in
cross-examination of Dr. Sheikh and in the evidence of the various defence
witnesses. I have concluded that this level of complexity would support, to
some extent, that there are special circumstances.

[21]        
The other argument relates to the length of the trial. Again, I would
note that the original notice of trial from May 2011 indicated that four days were
required for trial. Despite some discussion between counsel concerning the
appropriateness of the matter remaining under Rule 15-1, Mr. Struys did
not apply to have the matter removed from the Rule. In addition, the four-day
time estimate was confirmed at the trial management conference. And although
there was a bit of follow-up by counsel on one minor matter, which was dealt
with by written submissions, the trial essentially completed within the
four-day estimate.

[22]        
The question is whether the actual time of the trial is a special
circumstance here. The cases that I have already referred to discuss whether
the failure of a party to apply to take the proceeding out of the Rule renders that
party unable to make this argument. I am not persuaded that this is the case. The
trial judge in Majewska similarly concluded that the failure to apply to
remove the matter from Rule 66 did not preclude the court from finding that the
actual length of the trial beyond three days is a special circumstance that justifies
the exercise of its discretion in relation to costs: see Majewska at para. 35.

[23]        
I am also not persuaded that the parties’ agreement that the trial would
take four days, which was in place from May 2011 to the time of trial,
similarly precludes the court from exercising its discretion in this matter. Dr. Sheikh
has referred me to Travelbea v. Henrie, 2012 BCSC 2009. In that case, Mr. Justice
Barrow was dealing with a similar issue in the sense that the successful plaintiff
applied to obtain costs based on the tariff. In the alternative, the plaintiff
asked the court to exercise its discretion to increase the costs under Rule
15-1. The only special circumstance advanced was that although the trial was
set for four days, it took just under that amount of time to complete: para. 10.
Barrow J. declined to order tariff costs and to increase the Rule 15-1 costs
beyond $11,000.

[24]        
Although Barrow J. in Travelbea did not refer to Majewska or
Anderson, even had he considered those decisions, I am not convinced that
he would have reached a different conclusion. Barrow J. was clearly alive to
the need to find special circumstances and in the specific circumstances of
that case, he did not find those special circumstances.

[25]        
The exercise of the court’s discretion takes place within the context of
the specific factual circumstances in each case. I am not satisfied that the
facts in Travelbea are such that it is a sufficiently compelling
precedent in light of the factual situation presented here.

[26]        
As noted in Majewska, the court must also consider the overriding
object of the Rules, namely, that the Rule is not intended to deprive a
successful party of its costs. Rather, the underlying intention is to avoid the
costs of proceeding to a costs assessment in circumstances where the amounts
involved would be less significant than for other matters. In that sense, the
amounts set out in Rule 15-1(15) are intended to be a rough and ready
calculation for costs of a short trial. The Rule, again, is not intended to
punish a successful party by disallowing their costs that arose because a trial,
though completing within a proper timeframe, took slightly longer than what was
anticipated under the Rule itself.

[27]        
Neither party alleges that the trial took longer than it should have due
to any misstep or undue action taken by either party. The parties agreed that
four days was appropriate and, by and large, they managed to finish the trial within
that timeframe. That further step to finish the trial is a factor to be
considered in determining whether there are special circumstances such that Mr. Struys
should be compensated for the extra day of trial time that was necessary to
resolve the matter in his favour.

Conclusion

[28]        
I conclude that special circumstances arise in this case that would
allow me to exercise my discretion to award costs in a higher amount other than
what is provided under Rule 15‑1(15). Anderson and Majewska
are binding authority as to the appropriate approach in the exercise of my
discretion ‒ that
is, I must take a mathematical approach and award a per diem amount for
the extra day.

[29]        
Accordingly, I award the extra amount of $1,500 for the fourth day such
that the costs awarded to Mr. Struys are in the amount of $12,500, plus
applicable taxes and disbursements to be assessed. I am not making any
determination as to what specific disbursements will be allowed. Presumably,
the parties can either agree on that point or proceed to a hearing before the Registrar
on that issue.

[30]        
Mr. Struys will also have his costs of today’s application on Scale
B in any event of the cause.

“Fitzpatrick
J.”