IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130822

Docket: M139028

Registry: New Westminster

Between:

Jeffrey Berekoff

Plaintiff

And

Matthew Thomas Alexander McMath

Defendant

Before: District Registrar Cameron

Oral Reasons for
Decision

[1]            
This assessment of costs follows upon the settlement of a personal injury
claim that was subject to Rule 15-1(Fast Track Litigation). The settlement
occurred approximately three months before the scheduled trial date.

[2]            
The parties are at odds as to whether or not the costs that should be
awarded to the Plaintiff as mandated by Rule 15-1(15) should be reduced at all from
what is called the “cap amount”, or $6,500, for a matter that settles before
trial. The Plaintiff asserts that the full amount should be awarded and the
Defendant argues for a significant reduction to take into account that not all of
the preparation for trial had been done on behalf of the Plaintiff before the
settlement.

[3]            
In the recent decision of Christen v. McKenzie, 2013 BCSC 1317
Madam Justice Arnold-Bailey thoroughly reviewed the jurisprudence on this issue
and concluded that the “rough and ready” approach that has been taken by
Registrars in interpreting and applying Rule 15-1(15) should be endorsed
saying:

In Benz, Registrar Sainty concluded that the case was
“fairly far along.” A mediation had taken place and then the matter settled.
She considered that counsel prepare for mediation as if preparing for trial and
concluded that the remaining few small matters (pre-trial) could easily have
been completed from the preparation already done by plaintiff’s counsel.
Therefore, she concluded (at paras. 22-23), as did Master Baker in Gill v.
Widjaja, 2011 BCSC 1822, that the remaining tasks would not have added to
the level of preparation in a significant way and the plaintiff was entitled to
the full amount of the cap for preparation – $6,500.

I agree with Registrar Sainty’s comments in Benz that
drawing a line at a particular point in the fast track pre-trial process, prior
to which a party is not entitled to the full amount of the cap under Rule
15-1(15), may result in arbitrary unfairness in certain cases. On the other
hand, a balance must be struck, given that the purpose of fast track litigation
is to expedite matters and reduce or eliminate certain stages of litigation
that consume extra time and financial resources with regards to relatively
modest claims. Otherwise the purported benefits of fixing costs by
Rule 15-1(15) are lost. There is a real benefit to the “rough and ready”
approach in this regard. Indeed, it ought to be rough and ready to the extent
that reviews of what constitutes pre-trial preparation sufficient to warrant
the full costs award under Rule 15-1(15) are few and far between.

The wording of Rule 15-1(15) permits the court considerable
discretion to order costs other than as set out therein. The comments of Harvey
J. in Gill v. Widjaja at para. 42 reinforce the wide discretion of the
registrars when assessing costs in fast track actions. The rough and ready approach
does not require a detailed parsing of what has occurred. Nor is the rough and
ready approach necessarily to be tied to the timeline of steps usually taken
prior to trial.

To my mind significant preparation for trial ought to be
sufficient to entitle the successful party to costs for pre-trial preparation
to the full amount of the cap, presently $6,500 pursuant to Rule 15-1(15).
Pre-trial preparation may take various forms given the demands of the
particular action. Whether the parties engage in extensive negotiations or
mediation and thus achieve a settlement months or days before trial, the
preparation by counsel may easily approach that required to actually conduct
the trial. The focus ought to be on the amount of useful preparatory work done
and not where in the pre-trial timeline the resolution was reached. Indeed, the
focus of Rule 15-1 and the Civil Rules generally is to encourage early
and fulsome preparation to resolve cases earlier as opposed to later if
possible; and also to limit the scope of the proposed trial to what is truly at
issue, thus reducing the time and costs associated with resolving the dispute.

In the present case it is clear
that the matter was substantially prepared to the level necessary to achieve a
significant settlement prior to trial. While there may be fast track cases
where a review of the costs amount claimed for preparation is warranted, this
is not one. However one dissects and analyzes what was done or not done to
prepare this case for trial, a considerable amount of preparation was performed
by plaintiff’s counsel to achieve the sizable settlement. Extensive and
protracted negotiations, such as occurred here, ought not to be regarded as
requiring significantly less preparation than preparing a case for mediation or
trial. Indeed, such negotiations are to be encouraged as the most cost-effective
way of dealing with cases that would otherwise proceed to trial. The efficacy
of conducting a fast track action ought not to be undermined by a costs
analysis that bogs down in the picayune.

[4]            
In Christen, the settlement occurred on March 12, 2013, well
in advance of a three day trial scheduled for October 28, 2013. The lists
of documents had been exchanged, further document disclosure was demanded and
made, the case planning conference had been held, the Plaintiff had been
examined for discovery, an independent medical examination had been conducted
of the Plaintiff, and the parties engaged in extensive and lengthy negotiations
that resulted in a settlement.

[5]            
The Defendant pointed to matters that might reasonably be considered to
be left as further preparation for the Plaintiff to be ready for the trial if
that eventuality came to be. Madam Justice Arnold-Bailey said:

Generally, further proceedings
regarding costs in relation to fast track actions or actions under its
predecessor rule, Rule 66 of the Rules of Court, are to be discouraged.  Such
proceedings serve to drive up the cost of litigation in a regime of simplified
and streamlined proceedings designed to reduce such costs.  There is a
significant overall benefit to fixing costs as Rule 15‑1(15) does by
reflecting the amounts of costs that the successful party would normally
receive.

[6]            
Accordingly, Madam Justice Arnold-Bailey awarded the Plaintiff the full
“cap amount.”

[7]            
In this case, I am satisfied on the evidence that very significant
preparation had been done by Mr. Caissie on behalf of the Plaintiff. He submitted
if the case had not settled all he would have been left to complete was the
final preparation of his client to give evidence at trial, to prepare the
Plaintiff’s family physician and his chiropractor to ready them for giving
their evidence at trial, and lastly, an attendance at a trial management conference
that would have been held on July 11, 2013.

[8]            
With all of this I would have awarded the Plaintiff the entire cap
amount of $6,500. However, Mr. Caissie had agreed before this hearing that
a 10% reduction should be applied and as such I will allow the costs as claimed
of $5,850 plus applicable taxes.

DISBURSEMENTS

[9]            
I have reviewed the Affidavit of Ms. Howells and I am satisfied
that all of the disbursements claimed in this action were necessarily or
properly incurred in the conduct of the proceeding and they are all reasonable
as to the amount save for the claim for photocopies which I will allow at the
reduced amount of $250.

[10]        
The balance of the disbursements was well documented and they are
allowed as presented.

[11]        
In conclusion, costs are assessed at $12,008.37.

“District Registrar Cameron”