IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130815

Docket: M133757

Registry:
New Westminster

Between:

Tove Gulbrandsen

Plaintiff

And

Blake Mohr and
Albert Boyd

Defendants

Before:
The Honourable Mr. Justice Affleck

Supplementary Reasons for Judgment on Cost

[1]            
In reasons indexed at 2013 BCSC 959, I awarded the plaintiff in this
personal injury action costs up to the date of the remaining defendant’s offer
to settle, and double costs to the defendant thereafter. For the reasons I will
describe below, I have concluded the award of double costs to the defendant
ought to be reconsidered.

[2]            
The judgment order has not been signed and entered in this matter and
until that happens, this Court has an unfettered discretion to vary or revoke
an order.

[3]            
In Bronson v. Hewitt, 2011 BCSC 482 at para. 3, Mr. Justice
Goepel provided a useful summary of a reconsideration of an un-entered order of
this Court as follows:

[3] Prior to the entry of an
order, a trial judge has an unfettered discretion to reconsider or revise any
aspect of a decision: Clayton v. British American Securities Ltd.
(1934), 49 B.C.R. 28, [1935] D.L.R. 432 (C.A.). A judge may properly reopen if
satisfied because of the argument of one of the parties, or on the basis of his
own reconsideration of the record, that the original judgment was in error
because it overlooked or misconstrued material evidence or misapplied the law: Sykes
v. Sykes (1995), 6 B.C.L.R. (3d) 296 at para. 10 (C.A.). For the reasons
that follow, I am satisfied that the costs reasons do not overlook or
misconstrue any material evidence or misapply the law. If I am wrong in that
conclusion, the Court of Appeal is the appropriate forum to correct any of the
alleged errors.

[4]            
In B.J.L. v. J.R.D.L., 2003 BCSC 381 at para. 3, under the
heading “Reconsideration of Issues after Pronouncement of Judgment”, the Court
said the following:

[3] The recent authorities on this subject are canvassed at
some length by Bennett, J. in Cheema v. Cheema (2001), B.C.S.C.
298. That judgment and the authorities cited in it lead me to the following
conclusions:

1. A trial judge has an “unfettered discretion” to
reconsider an issue after pronouncement of judgment but before entry of the
final order: Clayton v. British American Securities Ltd., [1935]
1 D.L.R. 432 at 440; [1934] 3 W.W.R. 257, at 295 (B.C.C.A.);

2. This power must be “exercised sparingly” to avoid fraud
and abuse of process: ibid;

3. The underlying rationale for the unfettered discretion is
to prevent a miscarriage of justice: Clayton, supra; Kemp
v. Wittenberg [B.C.J. No. 810, (B.C.S.C.)];

4. In general, reconsideration of an issue is not an
alternative to an appeal. Reconsideration applications will not be entertained
where they are motivated by tactical considerations, particularly where the
argument advanced could have been advanced at trial: Sykes v. Sykes
(1995), 6 B.C.L.R. (3d) 296 (B.C.C.A.);

5. The burden of persuasion rests with the applicant, who
must show that a miscarriage of justice would probably occur unless the issue
is reconsidered and decided in her favour: Vance v. Vance (1981),
34 B.C.L.R. 209 (B.C.S.C.);

6. An issue may be reconsidered where new, relevant evidence
is adduced which was not available at the time of the original trial: Sykes,
supra;

7. An issue may be reconsidered if the original judgment is
in error because it overlooks material evidence: Sykes, supra;

8. An issue may be reconsidered if the original judgment is
in error because it misconstrues material evidence: Sykes, supra;

9. An issue may be reconsidered if the original judgment is
in error because it misapplies the law: Sykes, supra;

10. An issue may be reconsidered if the original judgment,
although not in error on the day it was given, becomes erroneous because of a
change in the law: Grigg v. Berg Estate (2000), B.C.S.C. 858;

11. An issue may be reconsidered where there has been a
change in circumstances between the date the judgment was pronounced and the
time of the subsequent application, provided the change in circumstances
relates to something fundamental to the original reasons for judgment: Cheema,
supra;

12. An issue may be reconsidered where the original judgment
was “so expressed as to lead to uncertainty and confusion”: Fame
Construction Ltd. v. 430863 B.C. Ltd., [1997] B.C.J. No. 1053
(B.C.S.C.).

[Emphasis in original.]

[5]            
On making the costs award, I did not consider several authorities that
ought to have been considered, including: A.E. v. D.W.J., 2009 BCSC 505,
and the appeal indexed at Evans v. Jensen, 2011 BCCA 279. Although these
cases were not argued on the costs application, they are referred to in Danicek
v. Li, 2011 BCSC 444, which counsel for the defendant included in his book
of authorities on the costs hearing. Furthermore, since the costs award, I have
considered Ward v. Klaus, 2011 BCSC 99, and Currie v. McKinnon,
2012 BCSC 1165.

[6]            
The plaintiff was represented by counsel at the trial, but not on the
defendant’s cost application. I requested written submissions from the parties addressing
the aforementioned authorities which suggest an award of double costs to the
defendant in the circumstances of the case before me was not appropriate, and I
have received submissions from both parties. The plaintiff’s submissions
largely address credibility findings in the trial reasons for judgment, which
findings influenced my award of double costs, but a costs application is not an
occasion to reargue findings from the trial.

[7]            
In A.E., Mr. Justice Goepel had the task of allocating costs
before and after a defence offer to settle for a sum which exceeded the award
of damages. Mr. Justice Goepel addressed the question of whether the
then R. 37B(5) gave the court a discretion to award single costs to the
defendant from the date of the offer and determined there was no such
discretion. The rule has since been amended to permit the exercise of that
discretion. In reaching his conclusion Goepel J., in obiter dicta at
para. 53, observed that it “would be a rare case a plaintiff who recovered
damages would face the sanction of double costs. I would expect those sanctions
would be limited to situations in which a plaintiff’s case is dismissed or when
the plaintiff was awarded more than his offer to settle”. The appeal was
dismissed. Madam Justice Prowse, with whom the other Judges agreed, at para. 44,
partially adopted the above obiter dicta of Goepel J. saying “it is likely
that double costs would be awarded in favour of the defendant only where the
plaintiff’s action was dismissed”.

[8]            
The Supreme Court Civil Rules are a creature of statute and their
provisions in regard to an award of double costs have been held to constitute a
complete code. See, for example, Cridge v. Harper Grey Easton & Co.,
2005 BCCA 33, referred to by Goepel J. in Ward.

[9]            
In Vukelic v. Canada, (1997), 37 B.C.L.R. (3d) 217 (C.A.), the
Court of Appeal, on considering appeal costs, referred to a decision of Fraser
J. as follows:

9 The remedy of double costs is a creature of statute.
A useful discussion of the reasons for the 1993 revisions of Rule 37, and its
consequences, are found in the judgment of Mr. Justice Fraser in Martell v.
Peetoom, [1996] B.C.J. No. 1806, 3 April, 1996, New Westminster Registry No.
S0-2046. At pp.6-7 of that judgment, Mr. Justice Fraser said this:

The design of Rule 37 provides different remedies for
plaintiffs and defendants. A defendant who makes an offer to settle more favourable
to the plaintiff than the ultimate judgment becomes entitled to the costs of
the action from the time the offer was delivered. A plaintiff who makes an
offer to settle more favourable to the defendant than the judgment is entitled
to double costs from the time the offer was delivered. The concept of double
costs is driven by the dynamics of the plaintiff’s situation: given that it is
predicated on the plaintiff recovering judgment, and given that the premise is
that the defendant made no offer or made an offer for less than the award, the
plaintiff would be entitled to costs of the action anyway. The only way to
reward a plaintiff is to augment the costs award. This is the genesis of the
concept of double costs. The regime is even-handed between plaintiffs and
defendants because it rewards each with a set of costs they would not otherwise
receive.

Rule 9-1(5) contains the same fundamental approach to an
award of double costs as the rule which prevailed when Vukelic was
decided.

[10]        
In Danicek, Kelleher J. considered whether he had jurisdiction to
award double costs to defendants whose offer exceeded the award of damages to
the plaintiff. Mr. Justice Kelleher concluded that “[u]nder the amended Rule,
the Court has the undoubted jurisdiction to make the double costs order sought
by the plaintiff ((sic): the defendants)”. The rule considered by Kelleher J.
was R. 37B(5) as amended on July 1, 2009, which in essence is identical to that
of the present R. 9-1(5) which reads:

Cost options

(5) In a proceeding in which an offer to settle has been
made, the court may do one or more of the following:

(a) deprive a party of any or all
of the costs, including any or all of the disbursements, to which the party
would otherwise be entitled in respect of all or some of the steps taken in the
proceeding after the date of delivery or service of the offer to settle;

(b) award double costs of all or
some of the steps taken in the proceeding after the date of delivery or service
of the offer to settle;

(c) award to a party, in respect of
all or some of the steps taken in the proceeding after the date of delivery or
service of the offer to settle, costs to which the party would have been
entitled had the offer not been made;

(d) if the offer was made by a defendant and the judgment
awarded to the plaintiff was no greater than the amount of the offer to settle,
award to the defendant the defendant’s costs in respect of all or some of the
steps taken in the proceeding after the date of delivery or service of the
offer to settle.

[11]        
Although there is discretion to award double costs to the defendant in
the action before me, the authorities suggest the discretion should be
exercised in only very limited circumstances. I have referred to those
authorities in para. 5 of these reasons, but I consider it important to have
regard for paras. 18 and 19 from the reasons of Madam Justice Adair in Currie,
which reinforce my decision to reconsider and vary my earlier award. Those
paras. are as follows:

[18] I think it certainly can be argued that if a defendant
who has made an offer to settle in an amount higher than the amount awarded to
the plaintiff at trial (and that is what has been done in this case) was then
awarded double costs, this would skew the procedure in favour of defendants and
unfairly penalize and pressure plaintiffs. This is because a plaintiff who
rejected an offer to settle would potentially risk a triple cost penalty if he
or she were to win at trial an amount less than the offer. The plaintiff would
suffer loss of the costs that he or she would normally receive on obtaining
judgment at trial, and face double costs payable to the defendant.

[19] In my view, there is a good
reason to apply Rule 9-1 in a way that is even-handed, or more even-handed, as
between plaintiffs and defendants. I would say for this reason one would expect
to see double costs awarded to a defendant, using the offer to settle
procedure, in exceptional circumstances only, such as a situation where the
plaintiff’s claim was dismissed all together after a plaintiff rejected an
offer to settle.

[12]        
These comments and those of Goepel J. in A.E., adopted by the
Court of Appeal in Evans, persuade me that the earlier costs award must
be varied to avoid an injustice and a misapplication of the law, and
accordingly the plaintiff will be entitled to her costs up to the date of the
defence offer and the defendant is entitled to single costs from that date.

[13]        
The plaintiff has ultimately succeeded on the issue of whether the
defendant ought to be entitled to double costs and will be entitled to the
costs of that application.

“Affleck J.”