IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20130621

Docket: S101533

Registry:
Vancouver

Between:

Amy Sefton

Plaintiff

And

Doppelmayr CTEC
Ltd., Intrawest ULC,
Intrawest Mountain Resorts Ltd.,
Blackcomb Skiing Enterprises Limited Partnership
and Whistler Mountain Resort Limited Partnership

Defendants

Before:
The Honourable Mr. Justice Betton

Oral Reasons for Judgment

In
Chambers

[1]            
THE COURT: This decision relates to costs. I have previously
delivered a written decision regarding damages following this trial, which
consumed some five days. The claim was advanced for personal injuries arising
from a gondola incident on Blackcomb Mountain where the plaintiff was a
passenger. Ultimately the award of damages was $38,100.

[2]            
The plaintiff seeks her costs according to the tariff in the ordinary
course. The defence argues, on the strength of an offer to settle that was
made, that alternate orders should be made. Various alternatives are proposed,
including limiting the costs to the amounts permitted under Rule 15‑1,
which deals with fast track litigation, or awarding the defendant costs or
double costs from the date of the offer.

[3]            
The offer was provided by way of fax and e-mail sometime after the close
of business on Friday, April 5th, and was open — the trial, I should say, was
to commence the following Monday and did commence and proceed the following
Monday. It was open for acceptance until 2 p.m. on the Sunday before the
commencement of the trial.

[4]            
On that Sunday, counsel for the plaintiff responded to the offer to
settle, indicating that the offer was rejected, and renewed an offer of $75,000.

[5]            
I have been provided with written submissions, supporting material, and
have had the benefit of counsel’s oral submissions here this morning.

[6]            
This trial, I should say, was never placed into the fast track protocol
and was not governed by those rules. There is no indication that at any time
either party sought to do so. As I indicated, the trial proceeded over five
days. In my decision, I articulated and described the arrangement, if you
will, insofar as liability was concerned. Liability was not contested but was
not formally admitted, and ultimately an agreement was filed as an exhibit and
the case proceeded on that basis. At trial, the evidence, issues and
submissions related to quantum.

[7]            
The defence did not call any evidence. The plaintiff did call a Dr. Weiss,
who was an expert retained by the defence and who carried out an evaluation of
the plaintiff, but from whom no report was obtained. She gave evidence not as
an expert, but as a lay witness, and described her observations of the
plaintiff during the course of her assessment.

[8]            
Other than that witness, all of the witnesses were more traditionally or
could properly be described more traditionally as plaintiff’s witnesses in the
ordinary course.

[9]            
Rule 14‑1(1)(f) discusses costs in circumstances where the only
relief granted is for money. There are other scenarios that are captured by the
Rule, but certainly it applies to this case. It says that where the plaintiff
recovers a judgment in which the total value of the relief granted is $100,000
or less, exclusive of interest and costs, Rule 15‑1(15) to (17) apply.

[10]        
Rule 15‑1 is the fast track litigation rule and Subrules (15) to
(17) deal with costs and indicate that where that rule is applicable and the
trial is more than two days in length, lump sum costs of $11,000 ought to be
awarded. That subrule, that is, Subrule (15), includes, as do most provisions
dealing with costs, the phrase "unless the court otherwise orders or the
parties consent".

[11]        
Rule 14‑1(1)(f) is also subject to the discretion of the court. Counsel
for the plaintiff agrees that, subject to the exercise of that discretion, that
Subrule 14‑1(1)(f) creates a presumption and that costs in this case would
be fixed at that lump sum of $11,000.

[12]        
Every case has its unique characteristics. As I indicated during the
course of counsel’s submissions, the offer to settle from the defendant came at
a late stage and was only open for acceptance until the Sunday before the
trial, something just shy of 48 hours. The plaintiff in submissions said that,
in the circumstances, that was not a reasonable time for consideration. I do
take into account, however, the plaintiff’s flat and simple rejection of the
offer and the renewal of a proposal for settlement or offer of settlement of
$75,000 by the e-mail response at 2:39 on April 6th, the day prior to the
commencement of the trial.

[13]        
As defence pointed out, there was an invitation of sorts in the offer to
settle to advise, if additional time was needed to consider the offer.

[14]        
Of relevance, in my view, to the assessment of costs and the application
of my discretion to the various rules that have been referred to in submissions
and the materials, and that are generally applicable, is the fact that the
plaintiff had made an offer to settle on March 1, 2013, for $82,160 not
including, as I recall, costs. That proposal is also under the $100,000
threshold referenced in Rule 14‑1(1)(f).

[15]        
In all these circumstances, it is my conclusion, when I consider all of
the various factors, that the appropriate award is to apply with some
modification Rule 14‑1(1)(f). That modification is to increase the
lump sum of $11,000 by the value of the tariff items that would be applicable
for the additional two days of trial. When I say an additional two days, I
take into account Rule 15‑1(15)(c) which applies if the time spent on the
hearing of the trial is more than two days, obviously contemplating anything
more than two days, and here we have five days which is two days more than what
is directly contemplated in that subrule. The allowance of units for each day
of trial is five for preparation, 10 for attendance. That would be a total of
30 units or $3,300 at the tariff rate of $110 per unit.

[16]        
Therefore, I would fix the costs to which the plaintiff is entitled,
exclusive of disbursements, at $14,300.

[17]        
As I indicated, there are a variety of factors that have influenced that
decision. They include the amount of the offer; the amount of the ultimate
award relative to that offer; the timing of the offer; the fact that the offer
was specifically rejected without any request for additional time; the fact
that the defendant did not call witnesses, thereby leaving the length of the
trial largely in the control of the plaintiff; the amount of the plaintiff’s
offer; and the general objectives, as I understand them, of the Rules relating
to costs, which is to encourage settlement.

[18]        
In my view and conclusion, the award and order that I have made is an
appropriate balancing of those factors and considerations, and the particular
facts and circumstances of this case.

[19]        
Anything else, counsel?

[20]        
MS. WILHELM-MORDEN:  No, My Lord.

[21]        
MR. GIANACOPOULOS:  I don’t know that, My Lord, that we need to
deal with the costs of this hearing. I’m assuming the costs of this hearing are
— yes, they’re already covered.

[22]        
THE COURT:  Yes.

[23]        
MR. GIANACOPOULOS:  So I don’t have anything else, My Lord.

[24]        
THE COURT:  Thank you.

Betton J.