IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Walker v. Doe,

 

2013 BCSC 2005

Date: 20131104

Docket: M085239

Registry:
Vancouver

Between:

Jason Walker

Plaintiff

And

John Doe and

Insurance
Corporation of British Columbia

Defendants

Before: The Honourable Mr. Justice
Voith

Reasons for Judgment

Counsel for the Plaintiff:

S.R. Coval

J. Cabott

Counsel for the Defendants:

I.D. Aikenhead, Q.C.

Appearing on his own behalf only on

February 21, 2013

Thomas Harding

Place and Date of Trial/Hearing:

Vancouver, B.C.
February 21, 2013,

September 25, 2013

Place and Date of Judgment:

Vancouver, B.C.

November 4, 2013



 

[1]            
The defendant, Insurance Corporation of British Columbia, seeks various
cost orders against either counsel for the plaintiff, Mr. Harding, or
against the plaintiff, Jason Walker. The application arises from my having
declared a mistrial. A new trial date has been set for June 9, 2014. Counsel
for each of Mr. Harding and the plaintiff argue that the issue of costs,
arising from the mistrial, should be dealt with by the trial judge who
ultimately hears this matter.

[2]            
Both the specific nature of the cost orders that the defendant now
seeks, as well as the history of these proceedings, are important to the
present application.

The Orders Sought

[3]            
The defendant seeks one of the following forms of relief:

1.       That counsel for the
Plaintiff, Thomas Harding, pay special costs and disbursements of the Defendant
for all costs thrown away resulting from the mistrial herein;

2.       In the alternative, that
counsel for the Plaintiff, Thomas Harding, pay the costs and disbursements
thrown away by the Defendant on a party and party basis, or increased costs
basis, resulting from the mistrial herein;

3.       In further alternative,
that the Plaintiff pay costs and disbursements thrown away by the Defendant on
a special costs basis, resulting from the mistrial herein;

4.       In further alternative,
that the Defendant be awarded its costs on a party and party basis, or
increased costs basis, for all costs and disbursements thrown away to be
payable by the Plaintiff to the Defendant, resulting from the mistrial herein;

The History of these Proceedings

[4]            
This case arises out of a claim for personal injuries by the plaintiff. Mr. Walker
claimed that on August 7, 2007, while riding his motorcycle on Highway 1 in
Chilliwack, he was struck by a tire from a motor vehicle driven by an unnamed
motorist and that he was thereby injured.

[5]            
The trial proceeded before a jury and ended on April 27, 2012, on the 14th
day of trial, with my declaring a mistrial following the closing submissions of
counsel for the plaintiff (the “Mistrial Ruling”). An appeal was filed by the
plaintiff on May 24, 2012.

[6]            
The defendant served its cost application on November 28, 2012. On
February 21, 2013 the plaintiff applied to adjourn the defendant’s application.
The central basis and focus of that application was the case of Joy v.
Atkinson,
2009 BCCA 230 and the assertion in that case that “the costs
associated with a mistrial are, as a matter of longstanding practice in this
jurisdiction, generally ordered to be assessed by the judge before whom the
case is ultimately tried” (at para. 15).

[7]            
The defendant argued, conversely, that careful examination of numerous
earlier decisions of the Court of Appeal did not support the existence of any
such “longstanding practice”.

[8]            
In a Memorandum to Counsel, dated March 6, 2013, I indicated that I
considered that the Court of Appeal was in a more appropriate position to
comment on its statement in Joy than I was. I was further influenced by
the fact that my review of the Respondent’s Factum suggested that my ongoing
role in the resolution of the costs from the mistrial would be placed before
the court during the appeal.

[9]            
At the hearing of the appeal, the Court of Appeal referred the issue
back to me concluding, based on the transcript available to me, that absent my making
an order on costs there would be no “practical utility” to the plaintiff’s
appeal.

[10]        
The parties thereafter rescheduled the application before me. The
application initially raised two broad questions. First, whether I should deal
with the issue of costs or, alternatively, order that costs be in the
discretion of the ultimate trial judge. Second, if I concluded that I ought to
determine the issue of costs, what the proper measure of those costs should be.

[11]        
Ultimately, counsel for Mr. Harding could not, for personal
reasons, attend the application. By agreement of all parties, however, argument
on the first issue proceeded. I have raised the fact that the second of these
issues was also initially intended to be heard by me because the materials that
were relevant to that second issue were also filed and available to me. That
fact becomes relevant later in these reasons.

Analysis

[12]        
The broad question of whether there is a “longstanding practice” in this
province that directs that the costs arising from a mistrial should be assessed
by the ultimate trial judge misses an important aspect of the particular issue
before me. The issue on this application is not, as the Response filed by the
plaintiff suggests, whether “[t]he allocation of costs thrown away as a result
of the mistrial should be in the ultimate cause or decided by the judge before
whom the case is ultimately tried”.

[13]        
The real issue, instead, is who should hear an application for costs,
following a mistrial, when the dominant focus of that cost application is an
order for special costs against counsel for the party that caused the mistrial.
The fact that the dominant, if not overwhelming, focus of the defendant’s
application is an order for special costs against counsel is patent from the
submissions of the parties as well as from the materials and authorities that
each has filed.

[14]        
The true focus of the application before me is important for two
reasons. First, Lowry J. A., in Joy, addressed a “general rule”. In
support of the existence of such a general rule Lowry J. A. referred to each of
Ericco v. British Columbia Electric Railway Company Limited
(1916),
23 B.C.R. 468 (C. A.) and Nordstrand v. Olsen (1968), 68 D.L.R. (2d) 645
(B.C.C.A.). The general rule has also recently been referred to in Cleeve v.
Gregerson
, 2009 BCCA 190 at para. 3.

[15]        
Thus, for example, in Errico, MacDonald C.J.A., at 470-471, confirmed
the existence of a “usual rule” which ought not to be departed from except “under
very exceptional circumstances”. The usual rule described being that the costs
of the abortive trial should follow the result of the second trial. Martin J.
A., in separate reasons, also addressed the existence of this “general rule”. (at
471).

[16]        
Though each of Joy, Errico and Nordstrand speaks of
a general rule, each also accepts the prospect of some exceptions to that rule.
Indeed, each refers to one or more examples of such exceptions.

[17]        
The present focus of the defendant’s application, in seeking special
costs against counsel for the plaintiff personally, is almost, by definition,
such an exception.

[18]        
The predecessor to an award of special costs was what was formerly known
as solicitor client costs. Indeed, some appellate decisions equated special
costs with solicitor client costs; see for example Ahluwalia v. Richmond
Cabs Ltd.
(1995), 13 B.C.L.R. (3d) 93 (C.A.) at 117, Fullerton v.
Matsqui (District)
(1992), 74 B.C.L.R. (2d) 311 (C.A.) at 318.

[19]        
The case law relevant to an award of solicitor client costs recognized
that such costs were awarded only “in very exceptional cases”; First City
Development Corp. v. Bekei,
[1984] B.C.J. No. 3036 (S.C.) at para. 7.

[20]        
Though it is now recognized that the “reprehensible conduct” which will
support an award of special costs can include “milder forms of misconduct”, the
dominant object of such awards continues to be to communicate the court’s
rebuke or reproof of particular conduct; Garcia v. Crestbrook Forest
Industries Ltd.
(1994), 119 D.L.R. (4th) 740 at 747. As
such, the court is primarily concerned with conduct that is deserving of
admonition. Such cases are, again, thankfully relatively infrequent.

[21]        
In addition, courts have consistently commented that an award for costs,
including party and party costs, against a lawyer is “to be used sparingly and
only in rare or exceptional cases”; Nazmdeh v. Spraggs, 2010 BCCA 131 at
para. 103. Awards of special costs, which rely on reprehensible conduct or
conduct worthy of rebuke, will be rarer still.

[22]        
The present application thus seeks a form of relief which is necessarily
unusual and which involves a very modest subset of the cost awards made by the
courts, including cost awards that follow a mistrial. A practical barometer
which confirms how truly unusual such cases are is found in the fact that not
one of the cases relied on by the parties in support of the existence of a
general rule for when cost awards should be made following a mistrial, or of
the exceptions to that general rule, or of the decisions where cost awards are
made following a mistrial without any reference to a general rule, arises out
of circumstances where the applicant seeks special costs against counsel for
the opposing party. In saying this, I observe that in O’Neil v. Pacific
Great Eastern Railway
(1971), 24 D.L.R. (3d) 628 (B.C.C.A.), the court,
following a mistrial, upheld the initial trial judge’s ruling that the costs of
the abortive trial be paid by the appellants’ solicitor personally. The court
did so, however, without any reference to a “general rule”.

[23]        
A further factor militates against having the ultimate judge who
oversees the trial of this matter address the present application. Special cost
awards are fact driven; FFS HK Ltd. v. P.T. 25 (Ship), 2011 BCSC 1418 at
para.10. The decision whether to award special costs “is a matter of judgment
on all the facts for the individual case in deciding whether the party in
question went over the line”; Cimolai v. Hall et al, 2007 BCCA 225 at para. 71.

[24]        
The benefit of having the judge who heard the trial and counsel’s
submissions which gave rise to a mistrial, also hear the ensuing special costs
application is obvious. In Cunningham v. Slubowski, 2004 BCSC 1204, Madame
Justice McKenzie, as she then was, following a 20 day trial, heard an
application for costs, including special costs, against counsel. She observed:

[61]      This trial was
difficult for all concerned. Ms. Wellburn provided me with valuable
assistance on this hearing. She made a valiant effort to grasp the course of
the proceedings, but had the disadvantage of not having been counsel at trial.
Counsel ordered a few transcripts of the proceedings, but I decided on 7 May
2003, on counsels’ request, that full transcripts were not justified by the
expense. As the trial judge, I had the unique position of assessing the course
of the proceedings at trial. My recollection remains vivid and, as referred to
above, I have considered all the voluminous material filed on this application.

[25]        
The foregoing comments are apposite. Notwithstanding the passage of time,
my memory of the trial and of the matters leading to the mistrial remains good.
My memory of many events remains vivid. Counsel for Mr. Walker sought to
argue that another judge, with the benefit of transcripts and the Mistrial
Ruling, would be in an equally good position to address the instant
application. I do not think that this is so.

[26]        
This submission is inconsistent with the principle that, absent an error
in principle, deference should be given to a judge making a cost award. Thus,
in Chudy v. Merchant Law Group, 2009 BCCA 93, Low and Lowry JJ.A., in
supplemental reasons, said:

[3]        The
limited scope of appellate review of an award of costs made by a

judge,
including special costs, was stated by Arbour J. in Hamilton v. Open

Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303:

[27]      A court should set aside a costs award on appeal
only if the trial judge has made an error in principle or if the costs award is
plainly wrong (Duong v. NN Life Insurance Co. of Canada (2001), 141
O.A.C. 307, at para. 14). In Wilkins J.’s costs order I find no such error
of principle, nor can I conclude that the award is plainly wrong. In light of
the privileged position of the trial judge to assess first-hand the credibility
of witnesses, and given the highly fact-driven nature of the analysis that was
required here, the costs order made by Wilkins J. must be restored.

[27]        
The submission of counsel for Mr. Walker is further undermined in
two respects. First, the application materials before me do not include
transcripts from the trial though the defendant’s materials recognize that that
may become necessary in certain finite instances. Thus, the expectation of all
parties, in advance of the application, was that my knowledge and familiarity
of the proceedings and with the circumstances that gave rise to the mistrial
would be adequate to deal with the respective submissions of the parties.

[28]        
Second, and in a related vein, it is clear from the written submissions
of the parties that they do intend to rely on aspects of the history of the
trial and that they intend to do so, apparently, based on my familiarity with
that history and on my memory of events. Thus, the submissions of counsel for Mr. Harding
state:

25.       Here, the Applicant comes with unclean hands. While
the court has already ruled that there is no “tit for tat” to excuse
impermissible submissions in closing, such analysis is appropriate when
considering costs.

26.       There are repeated examples where Defence counsel
misstated the facts, made repeated allegations of fraud, and acted in a
reprehensible manner throughout this trial. This conduct was repeatedly rebuked
by the court.

27.       The Defence now seeks
the Court to endorse their own conduct by applying for the extraordinary remedy
of personal costs against counsel. It the circumstances, that would by
inequitable and unjust.

[29]        
I do not consider that another trial judge could address such
submissions as readily or as easily as I could. This is so even if extensive
transcripts from the first trial were ordered.

Conclusions

[30]        
I consider that the foregoing considerations remove this application
from the ambit of the “general rule” referred to in Joy and that I
should hear the defendant’s application.

[31]        
I have also considered whether, having arrived at the foregoing conclusion,
I should defer dealing with the substance of the application until after the
appeal of the Mistrial Ruling. This would have the benefit of avoiding the
costs that would be incurred in hearing the application and that would be
wasted if the plaintiff is successful in its appeal of the Mistrial Ruling or,
indeed, from these reasons. Conversely, if the Mistrial Ruling is upheld, I
expect, having regard to the history of the matter, that any cost order I make
will likely be appealed in any event. On balance I consider it better and more
efficient to have each of the Mistrial Ruling, these reasons, as well as the eventual
reasons from the cost application available before the hearing before the Court
of Appeal takes place.

[32]        
I have not attempted to reconcile or address what were described as the
“two trains of authority” that arise out of cost applications following a
mistrial. I continue to consider that this role falls, more appropriately, to
the Court of Appeal.

Voith
J.