IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140225

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

[1]            
The defendant, Insurance Corporation of British Columbia (ICBC), seeks
an order that counsel for the plaintiff, Mr. T. Harding, pay the special costs
that arise out of a mistrial.

[2]            
The facts that underlie this application are straightforward and not in
dispute. The central issue raised by the defendant ICBC is further simplified
by the various concessions that were made by counsel, at various points, during
the course of submissions.

Facts, Procedural Background and Status

[3]            
This action arises out of a claim for personal injuries by the
plaintiff, Mr. Walker. He claims 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 unknown motorist and that he was thereby injured.

[4]            
The trial, which proceeded before a jury, commenced on April 10, 2012
and ended on the 14^th day of the trial. At that time, I declared a
mistrial based on the conduct of counsel for the plaintiff in his closing
address. I adjourned the issue of costs arising from the mistrial.

[5]            
The defendant ICBC acknowledged throughout the trial that the plaintiff
was seriously injured and that, absent the various defences that ICBC had
advanced, the plaintiff’s losses likely exceeded the $200,000 coverage limit
established by s. 24 of the Insurance (Vehicle) Act, R.S.B.C. 1996,
c. 231 through the operation of s. 105(1) and s. 9(1) of
Schedule 3 of the Insurance (Vehicle) Regulation, B.C. Reg. 447/83. The
central issue raised by the defence was whether the accident and the
plaintiff’s injuries had occurred in the manner that the plaintiff described. A
further issue arose with respect to whether the plaintiff had mitigated his
losses and, more specifically, had genuinely sought employment subsequent to
his accident.

[6]            
My oral reasons for judgment granting the mistrial (the “Mistrial Ruling”)
were delivered on April 30, 2012. The plaintiff appealed the Mistrial Ruling on
May 24, 2012.

[7]            
Counsel for the plaintiff and for Mr. Harding subsequently argued
before me that the issue of costs arising from the mistrial should be dealt
with by the trial judge who ultimately hears the trial, rather than by myself.
I concluded, in reasons for judgment indexed at 2013 BCSC 2005, that it was
more appropriate for me to hear the present application.

[8]            
The trial of the action is now scheduled to commence June 9, 2014. I
understand that the trial is to take place before a jury for a period of 20
days.

Analysis

1)       Party and Party Costs

[9]            
Counsel for Mr. Harding accepts that an order that Mr. Harding
pay the defendant ICBC’s party and party costs arising from the mistrial is
appropriate. That acknowledgment is important and fitting. I say important
because it obviates the need to address the circumstances in which an order for
party and party costs can or should be made against a lawyer. It further
obviates the need to address the various cautions that normally attend any such
order.

[10]        
I say fitting because the mistrial arose solely as a result of the
closing address of Mr. Harding. Such circumstances do not engage any
question of solicitor-client privilege, nor do they call into question where
responsibility, as between client and lawyer, should lie. Instead, as Wilson J.
in Gemmell v. Reddicopp et al, 2003 BCSC 21, the mistrial ruling being aff’d
at 2005 BCCA 628, said:

[14]      The closing address is
singularly a product of counsel’s mind. In the ordinary course of events, the
client does not direct counsel on the form or substance of that address. A
wayward address is the act of counsel alone. There is no reason for the client
to bear the responsibility for the adverse consequences of such an address.

[11]        
Having said this, it is worth emphasizing certain aspects of party and
party cost awards that are made against a lawyer and, in particular, those
aspects that are different from cost awards that are made against a lawyer on a
special cost basis.

[12]        
Rule 14–1(33) of the Supreme Court Civil Rules, formerly Rule
57(37), provides:

(33)      If the court considers that a party’s lawyer has
caused costs to be incurred without reasonable cause, or has caused costs to be
wasted through delay, neglect or some other fault, the court may do any one or
more of the following:

(a)   disallow any fees and
disbursements between the lawyer and the lawyer’s client or, if those fees or
disbursements have been paid, order that the lawyer repay some or all of them
to the client;

(b)   order that the lawyer
indemnify his or her client for all or part of any costs that the client has
been ordered to pay to another party;

(c)   order that the lawyer be
personally liable for all or part of any costs that his or her client has been
ordered to pay to another party;

(d)   make any other order that the court considers will further
the object of these Supreme Court Civil Rules.

[13]        
In Nazmdeh v. Spraggs, 2010 BCCA 131, a five person panel of the
Court of Appeal considered the object and application of the former Rule 57(37),
the language of which is substantively equivalent to the current Rule 14-1(33).
The case addressed a number of earlier appellate decisions that had stated or
intimated that some form of reprehensible conduct was necessary before an award
could be made against a lawyer under Rule 57(37) or its predecessor provisions;
see for example Kent v. Waldock, 2000 BCCA 357 and Young v. Young
(1990), 75 D.L.R. (4th) 46 (B.C.C.A.), aff’d [1993] 4 S.C.R. 3. These earlier
decisions were thereafter relied on in a number of decisions of this court that
were included in the authorities provided to me; see for example, Cunningham
v. Slubowski, 2004 BCSC 1204; International Hi-Tech Industries Inc. v. FANUC
Robotics Canada Ltd., 2007 BCSC 1724; Billows v. Canarc Forest Products
Ltd. et al, 2005 BCSC 623.

[14]        
Each of Cunningham, International Hi-Tech Industries and Billows
deal with cost awards against lawyers under Rule 57(37) and with applications
for special costs against lawyers. In some instances, respectfully, the
analysis between these two categories of cost awards overlap. To the extent
these cases suggest that some form of serious misconduct is required before an
order for costs could have been made against a lawyer under the former Rule
57(37) they appear to have been overtaken by Nazmdeh.

[15]        
Finch C.J., for the court in Nazmdeh, expressed the following
conclusions:

1)       The court has the
power to award costs against a lawyer under its inherent jurisdiction (paras. 35
and 36). The question of whether a cost award is made against a lawyer under
the Rules or under the court’s inherent jurisdiction is important and can
influence the nature of the lawyer’s conduct that is required before a cost
award can be made (paras. 49, 90 and 101). Thus, a cost award made under
the court’s inherent jurisdiction may require a higher degree of fault or
culpability on the part of the lawyer than an award made pursuant to the Rules (para. 102).

2)       Both the plain meaning
of Rule 57(37) (para. 44) and the jurisprudence relevant to the Rule canvassed
by the court confirm that “mere delay and mere neglect may, in some
circumstances, be sufficient for such an order against a lawyer” (para. 102).

3)       The standard of conduct relevant to a cost
order against a lawyer under Rule 57(37) and an order for special costs is
different:

[102]    Under Rule 57(37), mere delay and mere neglect may,
in some circumstances, be sufficient for such an order against a lawyer. Under
the Rule there is no requirement for “serious misconduct”, the standard
required under the court’s inherent jurisdiction. The requirement in Young and
in Kent of “reprehensible” conduct applies only in cases of orders
against a lawyer for special costs. Young and Kent are not
authority for requiring such a standard when making an order for party and
party costs against a lawyer. In such circumstances, the lower standard
mandated by the Rule is sufficient.

4)       The objects of an order for party and party
costs and of special costs are also different:

[41]      Further, the scheme and object of the Rule is
consistent with the lower threshold. Rule 57 (1) and (3) provide two levels of
costs – party and party costs, and special costs. These two levels of costs
serve different functions. Party and party costs serve to partially indemnify
the successful litigant, deter frivolous actions and defences, encourage both
parties to deliver reasonable offers to settle, and discourage improper or
unnecessary steps in the litigation: Skidmore v. Blackmore (1995), 122
D.L.R. (4th) 330 (C.A.) at para. 37. Special costs (formerly solicitor and
client costs), also have a compensatory function, but they carry a punitive or
deterrent element. They are reserved for cases where the conduct is scandalous,
outrageous or reprehensible, and are deserving of punishment or rebuke: Stiles
v. B.C. (W.C.B.) (1989), 38 B.C.L.R. (2d) 307 (C.A.).

5)       The power to make a cost order against a
lawyer under Rule 57(37) is discretionary but it is “a power to be exercised with
restraint” and “only in rare or exceptional cases” (para. 103). Thus,
though Rule 57(37) expanded the basis for cost awards against a lawyer, it is
important that judges should continue to be cautious when exercising their
discretion to make such cost orders (para. 87).

2)       Special Costs

[16]        
The concession by counsel for Mr. Harding that an award of party
and party costs against Mr. Harding is appropriate recognizes that ICBC
should be partially indemnified for its legal expenses arising from the
mistrial. Such an award would not, however, carry a “punitive or deterrent” component
nor would it signal the court’s rebuke as an award of special costs would.

[17]        
Rule 14–1(1)(b) provides:

(1)      If costs are payable to a party under these Supreme
Court Civil Rules or by order, those costs must be assessed as party and party
costs in accordance with Appendix B unless any of the following circumstances
exist:

(b)  the court orders that

(i)   the costs of the proceeding
be assessed as special costs, or

(ii)  the costs of an application, a step or any other
matter in the proceeding be assessed as special costs in which event, subject
to subrule (10), costs in relation to all other applications, steps and matters
in the proceeding must be determined and assessed under this rule in accordance
with this subrule;

[18]        
There was no suggestion before me that Mr. Harding’s conduct,
qua barrister, enjoyed any immunity from an award of special costs.
Furthermore, counsel for each of the three parties agreed, in response to a
question I posed to them, that the same standard of conduct determined whether
special costs should be awarded against a party or against their lawyer.

[19]        
In Nazmdeh, at para. 61, Finch C.J. said:

[61]      This reasoning implies
that because there must be “reprehensible” behaviour for an order of special
costs against a party, there must also be “reprehensible” conduct by a lawyer
if he is to be responsible for those special costs. This is, with respect, a
reasonable conclusion. “Special costs” are meant to chastise reprehensible
conduct, and there is no apparent reason why, if a lawyer is to be ordered to
pay special costs personally, the lawyer should be held to a different standard
than a party.

[20]        
Once again I recognize that though the standard of conduct relevant to
an award of special costs as against a party or their counsel may be the same,
such awards will only be made against counsel sparingly and in exceptional
circumstances.

[21]        
Accordingly, this application for special costs turns not on any contest
of legal principle but rather on the application of relatively straightforward
principles to the present circumstances.

[22]        
The leading case on when an award of special costs is appropriate and
what such cost awards are intended to achieve is Garcia v. Crestbrook Forest
Industries Ltd. (1994), 9 B.C.L.R. (3d) 242 (C.A.). In that case Lambert
J.A., for the court, said:

17  Having regard to
the terminology adopted by Madam Justice McLachlin in Young v. Young, to
the terminology adopted by Mr. Justice Cumming in Fullerton v. Matsqui
(District), and to the application of the standard of "reprehensible
conduct" by Chief Justice Esson in Leung v. Leung in awarding
special costs in circumstances where he had explicitly found that the conduct
in question was neither scandalous nor outrageous, but could only be
categorized as one of the "milder forms of misconduct" which could
simply be said to be "deserving of reproof or rebuke", it is my
opinion that the single standard for the awarding of special costs is that the
conduct in question properly be categorized as "reprehensible". As
Chief Justice Esson said in Leung v. Leung, the word reprehensible is a
word of wide meaning. It encompasses scandalous or outrageous conduct but it
also encompasses milder forms of misconduct deserving of reproof or rebuke.
Accordingly, the standard represented by the word reprehensible, taken in that
sense, must represent a general and all encompassing expression of the
applicable standard for the award of special costs.

[23]        
Various additional formulations or descriptions further define what
conduct, on the part of a lawyer, can warrant rebuke or reproof and accordingly
an award of special costs.

[24]        
In Fraser River Contracting Ltd. v. F.W.P. Construction Ltd.,
[1978] 2 W.W.R. 355 (B.C.S.C.), an award of special (at the time solicitor and
client) costs was made against a lawyer who had failed to comply with a court
order. McDonald L.J.S.C. relied on Myers v. Elman, [1939] 4 All E.R.
484, and the various judgments therein and at 360 he quoted from the judgment
of Lord Wright at 506 – 507:

The cases of the
exercise of this jurisdiction to be found in the reports are numerous, and show
how the courts were guided by their opinion as to the character of the conduct
complained of. The underlying principle is that the court has a right and a
duty to supervise the conduct of its solicitors, and visit with penalties any
conduct of a solicitor which is of such a nature as to tend to defeat justice
in the very cause in which he is engaged professionally, as was said by Lord Abinger, C.B., in Stephens v.
Hill (1842), 10 M. & W. 28, 152 E.R. 368. The matter complained
of need not be criminal. It need not involve peculation or dishonesty. A mere
mistake or error of judgment is not generally sufficient, but a gross neglect
or inaccuracy in a matter which it is a solicitor’s duty to ascertain with
accuracy may suffice.

[25]        
In Nazmdeh, Finch C.J. at para. 46,
referred to Myers as the “leading English authority on the inherent
jurisdiction of the courts to make orders for costs against solicitors”. Myers
does not then expressly address the threshold conduct required before an order
of special costs can be made against a lawyer. Nevertheless, I think it is
clear that “mere mistake or error of judgment” on the part of a lawyer would
not justify such an award.

[26]        
In Bank of Credit and Commerce International (Overseas) Ltd. v. Akbar
et al, 2001 BCCA 204, the court upheld an award of special costs
where the parties’ conduct was described as “careless” but not “reckless or
wilful” (paras. 16 and 19). It was accepted that “reckless or wilful”
conduct would support an order for special costs. Notwithstanding this
decision, I have not, for the purposes of the present application, considered
that “careless” conduct on the part of Mr. Harding would justify an award
of special costs.

[27]        
It is clear that “excessive zeal” on the part of counsel would also not
warrant an award of special costs; Young at 112, aff’d [1993] 4 S.C.R. 3
at 135-136. So too, in Billows, MacKenzie J., as she then was, concluded
that though the conduct of plaintiff’s counsel “was characterized by mistakes,
errors in judgment and ill­conceived opinions” (para. 78), she declined to
make an award of special costs. Such conduct was held not to be “reprehensible”
and did not warrant any rebuke, reproof or punitive sanction.

[28]        
Two issues arise on this application. The first is factual. The second
is legal.

a)       The Factual Question:
Were Those Portions of Mr. Harding’s Closing Address that Gave Rise to the
Mistrial the Product of Excessive Zeal, Mistake or Negligence?

[29]        
The Mistrial Ruling describes at some length the concerns that I had
with Mr. Harding’s closing address. Those concerns were many and varied.
They included, inter alia, disparaging comments about opposing counsel,
unsupported allegations that an expert, Dr. Toor, had misrepresented or
falsified evidence, misrepresenting the position of the defendants, misstating
various legal propositions and appealing to the emotions of the jury. There
were multiple examples within several of these categories of wrong.

[30]        
I do not believe that these various improprieties were the product of zeal
or of some mistake. Mr. Harding’s conduct was deliberate and wrongful and reflects
an obdurate belief that his conduct was, or ought to be, acceptable.

[31]        
I have come to this conclusion for several reasons. First, this is not
the first time that Mr. Harding has engaged in conduct that has given rise
to concern. In the relatively recent case of Jamopolsky v. Shattler,
2010 BCSC 408, Mr. Harding filed an application seeking a declaration of
contempt against the lawyers for the defendants. The submissions filed by Mr. Harding
asserted that the named lawyers had committed “a dishonest or dishonourable
act” (para. 18).

[32]        
Mr. Justice Greyell concluded that the application constituted an
abuse of process (para. 19) and was deserving of rebuke (para. 20). However,
he further concluded that he could not intrude on solicitor client privilege
and therefore ordered special costs against Mr. Harding’s client rather
than against Mr. Harding personally (para. 23). Nevertheless, he
said:

[21]      While I accept that counsel often has to take
difficult and hard positions in pursuing the interests of a client, counsel had
an overriding duty to the court which was well expressed in the oft-cited
passage of Lord Wright in Rondel v. Worsfley (1968), 1 A.C. 191 were [sic]
he stated:

Every counsel has a duty to his client fearlessly to raise
every issue, advance every argument and ask every question, however
distasteful, which he thinks will help his client’s case. But, as an officer of
the Court concerned in the administration of justice, he has an overriding duty
to the Court, to the standards of his profession, and to the public, which may
and often does lead to a conflict with his client’s wishes or with what the
client thinks are his personal interests. Counsel must not mislead the court,
he must not lend himself to the casting aspersions on the other party or
witnesses for which there are no sufficient basis in the information in his
possession.

[33]        
More recently, and more importantly, in Blackley v. Newland
(February 2, 2012) New Westminster M121592 (S.C.), Williams J. addressed a
mistrial application brought by the defendant following Mr. Harding’s
closing address to the jury. In relation to Mr. Harding’s conduct in that
case, Williams J. said:

[2]        The issue for me is this: I must ask whether that
conduct is such as to have inflicted meaningful damage upon the integrity of
this jury trial process. Is it reasonable to believe that the jury’s ability to
fairly try this case has been damaged and cannot be retrieved by way of
appropriate directions from the Court? If the answer to that is yes, then the
application will succeed. If not, the trial should continue with whatever
rectifying directions will be appropriate.

[3]        Many of the concerns raised by defence counsel are
indeed distressing. Some may believe that this is simply part of the rough and
tumble way that personal injury trial practice is conducted. That may be so for
some of what has been complained of, although it is by no means commendable.
Other parts of the conduct to which objection is made are more disconcerting;
they are not acceptable. I refer specifically to the very pointed allegation
that two medical professionals called as defence witnesses are persons who have
been prepared to sell their opinion. In my view, the comments that were made
are excessive and improper.

[4]        As well, the notion articulated by the plaintiff’s
counsel that the defendants somehow consider the plaintiff a worthless
individual and have accordingly treated him shabbily because of that, are also
troublesome and, in my view, entirely unwarranted in the context of the case.
It seems to be a naked attempt to cause the jury to decide this case on an
emotional basis.

[5]        As an observation, plaintiff’s counsel’s style
sometimes seems to reflect a view that litigation is to be practised in a
war-like, win-at-any-cost way. Over the past number of days, there have been
occasions where my inclination to that view has found support.

[6]        Nevertheless, I have to ask myself whether I
believe that I can set right those concerns by way of appropriate directions to
the jury. Not without some trepidation, I conclude that I can.

[7]        In part, I base that upon an expectation that the
jury address of defence counsel will to some significant degree set matters on
a more even keel. That said, I obviously have to take considerable care in the
course of the jury instruction to deal with the concerns which have been
raised.

[8]        In all the
circumstances, the application is dismissed.

[34]        
The foregoing reasons for judgment of Williams J. are significant for
several reasons. They pertain to events that occurred a few months before the
Mistrial Ruling. They address several issues and several forms of improper
conduct that mirror the concerns I identified in the Mistrial Ruling. They
further make perfectly clear that Mr. Harding’s conduct in that case was
“unacceptable” and that he had crossed the line beyond what might be considered
by some as an acceptable “rough-and-tumble” approach to certain forms of trial
practice.

[35]        
Before me counsel for ICBC argued that these forms of conduct on the
part of Mr. Harding were strategic and part of his “playbook”. I need not
decide that issue nor go that far. However, the fact that Mr. Harding, who
is an experienced trial lawyer, would engage in the very forms of conduct that he
had recently been told by another judge of this court, in unequivocal terms,
were unacceptable, militates against the conclusion that his repeated conduct
constituted over-exuberance, or a mistake or even negligence. Instead,
following the stern admonishment of Mr. Justice Williams, and recognizing
that his conduct had nearly caused a mistrial, one would have thought that Mr. Harding
would have been assiduously careful to avoid engaging in any like form of
conduct in subsequent trials.

[36]        
Each of Ahmed v. Vancouver (City), 2011 BCSC 717, at para. 19
and Jayetileke v. Blake, 2010 BCSC 1478, at para. 40 are instances
of where a court has looked to and relied upon events prior to the proceeding
in question to assist with its assessment of a party’s conduct in an
application for special costs.

[37]        
Second, Mr. Harding’s conduct prior to and during the trial is
relevant. Prior to the commencement of the trial I spent several hours with
both sets of counsel reviewing, vetting and effectively redrafting significant
portions of Mr. Harding’s opening address. Aspects of that opening, in its
original form, were manifestly inappropriate and would have given rise to
difficulty. Near the end of the trial, Mr. Harding told me he wished to make
use of two documents in his closing address as demonstrative evidence. I permitted
their use, but required him to first provide those documents to counsel for the
defendant ICBC so that the documents might be reviewed. I then learned that Mr. Harding
prepared a third document that he intended to use that was not in keeping with
his earlier submissions to me, which I decided was wholly inappropriate and that
I would not allow him to use it in his closing address.

[38]        
The breadth and nature of the comments that I considered to be
inappropriate within Mr. Harding’s closing address are also relevant. This
is not a case of a few isolated errors, however extreme. In Gemmell,
Wilson J. directed that a lawyer pay the opposing party’s costs on a party and
party basis and said:

[12]      Whatever else counsel views a jury trial as, he
cannot avoid the view that whatever else it is, a jury trial aspires to be a
rational decision-making process. In that process, a juror cannot be corrected
for an error in reasoning after the verdict. Therefore, the law strives to
eliminate, so far as humanly possible, the bases for erroneous reasoning, by
eliminating irrelevant factors from the process before verdict.

[13]      Counsel’s drama,
theatrics and rhetoric, must yield to that principle. Before counsel
incorporates the act of throwing documents out of the courtroom window, as part
of an address, it is incumbent upon counsel to be sure that manoeuvre does not
introduce an irrelevant factor into that particular trial.

[39]        
In this case the difficulties with Mr. Harding’s closing address
went well beyond the introduction of inappropriate theatrics. Still further,
the nature of some of these difficulties are not consonant with either
excessive zeal or a lack of care. Thus, Mr. Harding, on more than one occasion
and in more than one way, significantly mischaracterized the nature of the issues
facing the jury. He stated that ICBC was arguing that Mr. Walker was
feigning his injuries. This was not so. It was crystal clear from multiple
sources, including the defendant’s opening, that ICBC accepted that Mr. Walker
had suffered a relatively serious injury. The fact that such misstatements were
captured in a written address, presumably carefully prepared, is also
inconsistent with the conclusion that they were made inadvertently or through a
lack of care.

[40]        
Still further, no part of Mr. Harding’s demeanor during his
response to the defendant’s application for a mistrial was congruent with his
having simply been either overly zealous or insufficiently careful during his
closing address. There was no real recognition of wrong. It was not apparent,
in any way, that the “penny had dropped”. There was, instead, an insistence
that, in the main, his address had been appropriate. He argued that at most some
corrective instruction to the jury might be necessary.

[41]        
Finally Mr. Harding’s post-trial conduct is relevant in assessing
whether the excesses in his closing address were either willful and intentional
on the one hand, or were the product of carelessness or mere error on the
other. I wish to make clear that I do not rely, as counsel for ICBC urged, on
such post-trial conduct as an independent basis on which to impose special
costs. Rather, I have looked to such conduct solely as an additional form of
evidence that informs my assessment of Mr. Harding’s conduct.

[42]        
The appeal of this matter, as I have said, was filed on May 24, 2012. On
July 3, 2012 Mr. Harding gave an interview that was published in the
Vancouver Sun. In it he was critical of the court, which is one thing, but more
importantly he continued to assert that his conduct had been proper and
appropriate. He continued, for example, to attack Dr. Toor.

[43]        
Shortly thereafter Mr. Harding, apparently in response to a
threatened or actual defamation suit by Dr. Toor, prepared an unequivocal
apology to the doctor, acknowledging that his allegations about Dr. Toor
had been misleading. He accepted that Dr. Toor had both given his evidence
in a professional manner and that he had complied with his obligations to the
court as an expert.

[44]        
I was advised that for the purposes of the appeal from the Mistrial Ruling
Mr. Harding had renewed his attack on Dr. Toor. Whether this is open
to him, following his written statements to Dr. Toor, is not relevant for
present purposes. What is relevant is that Mr. Harding, some two to four
months after the Mistrial Ruling, continued to advance the correctness of his
position. Such conduct is not, again, consonant with the conclusion that his
conduct during his closing address was the product of zeal or error.

[45]        
Thus, none of Mr. Harding’s pre-trial conduct or history, his conduct
during the trial nor his conduct post-trial are consistent, on an objective
basis, with his having made some mistake, with some lapse in judgment, with
overzealousness or even with negligence. Instead this pattern of conduct is
consistent with either an indifference to what, on a principled basis, is
permissible and appropriate conduct for counsel or with an ongoing obdurance
about what should be permissible.

[46]        
I wish to make clear that I am acutely aware of how cautiously and
rarely the court should arrive at such findings. There are many reasons for
this. Counsel should be able to vigorously advance difficult cases without
being deterred by the inappropriate use of cost awards or judicial censure.
Furthermore, counsel’s conduct in some instances is protected by solicitor-client
privilege. It is further protected through the recognition that counsel can
make mistakes or can even be negligent. Such conduct in those circumstances is
not deserving of rebuke or sanction.

[47]        
At the same time, these concerns should be put into context. Competent
counsel forcefully advance the interests of their clients in difficult cases on
a daily basis. They do so in a manner that comports with both their
professional obligations and the dictates of the relevant case law. Describing
a trial, and in particular a jury trial, as “a fight” may be colourful and have
some superficial appeal, but it is simplistic and misleading. Courts have, over
many decades, consistently and repeatedly explained the boundaries of what is
proper and appropriate in the context of such a “fight”: Stewart and Stewart
v. Speer, [1953] O.R. 502 (C.A.) at 508-09; R. v. Felderhof (2003),
235 D.L.R. (4th) 131 (Ont. C.A.) at paras. 84, 94-96; and Landolfi
v. Fargione (2006), 265 D.L.R. (4th) 426 (Ont. C.A.) at 76-80, 88, 91
and 97-99.

[48]        
The care or caution that a court must exercise prior to making an award
of special costs against a lawyer should not serve to immunize a lawyer who, the
court is satisfied, has acted willfully. The very reason that such conduct is
not acceptable, in the context of a jury trial, is because it has a real
prospect of impacting adversely on trial fairness. Still further, a mistrial
is, for self-evident reasons, exceedingly unfortunate. It is unfortunate for
the parties, for the court and for the administration of justice.

2)       The Legal Question –
Is the Fact that the Positions of the Parties at Trial were “Polarized”
Relevant?

[49]        
Counsel for Mr. Harding argued that the conduct of counsel for ICBC
during trial made any award of special costs against Mr. Harding unjust.
He further argued that the position of ICBC in submitting, for example, that Mr. Walker
had not been forthright in describing how this accident had occurred, caused
the position of the parties to be “polarized” and that this was somehow
relevant to the question of costs.

[50]        
These issues revisit, at least indirectly, some of the matters raised by
Mr. Harding during the mistrial application. Because the Mistrial Ruling
is being appealed, it is inappropriate to develop these matters more fully than
necessary. Nevertheless the submissions made to me warrant some consideration
and comment.

[51]        
In the circumstances it is sufficient to say:

i)        The position of the
parties at trial was not uniquely or unusually “polarized”. ICBC a) did not
accept the plaintiff’s evidence of how he was injured and b) questioned whether
Mr. Walker truly sought to find employment after his injury. These
propositions were put to the plaintiff and, where appropriate, to other witnesses.
This theory of ICBC’s case was also advanced through its experts. Inherent in
these questions or this evidence was the proposition that Mr. Walker was
not being honest in his evidence. There is nothing unusual about this.

ii)        The Mistrial Ruling
conveys my views of the specific concerns that Mr. Harding raised, at the
time, about the conduct of counsel for ICBC.

[52]        
I also accept that context can be important in an application for
special costs. In Young, Cumming J.A. was satisfied that the lawyer in
question’s conduct was the product of “excessive zeal” as he was faced “with a determined
attack upon the religious beliefs and practices of the client for whom he was
acting” (at 112).

[53]        
Thus, such context can be helpful in deciding whether, in a hard fought
case, counsel lost perspective and acted rashly. In this application, in
analytical terms, we are no longer at the point where such context is relevant.
I have considered context and, context notwithstanding, I have expressed my
conclusions about Mr. Harding’s conduct and about what underlay or
motivated that conduct.

[54]        
Once again, the underpinning of a mistrial ruling, arising from the
closing address of plaintiff’s counsel, is that the address has imperiled the
trial fairness rights of the defendant in a way that cannot be rectified. The
submission that counsel can deliberately or willfully engage in conduct that
gives rise to a mistrial, and then seek refuge from sanction because the matter
was hard-fought or “polarized” is without basis.

[55]        
The suggestion that counsel can engage in such conduct because he or she
perceives that opposing counsel has acted aggressively or inappropriately
during the course of the trial is similarly misconceived. It suggests that some
sort of notional set-off is appropriate. Even if the conduct of counsel for
ICBC had been unusual or aggressive to some unusual degree, and I do not say
that it was, that conduct did not give rise to the mistrial. Instead, the
conduct of counsel for both parties was addressed, in the usual way, throughout
the course of the trial. The mistrial, the event which underlies this
application, was the product of Mr. Harding’s conduct alone.

Conclusion:  Is an Award of Special Costs Appropriate?

[56]        
I have said that Mr. Harding’s conduct was willful and obdurate.
That conduct is “reprehensible” and is deserving of rebuke and sanction. The
question is what sanction?

[57]        
An award of special costs is discretionary and it does not follow as a
matter of right from the conclusion that counsel’s conduct deserves rebuke. Mr. Harding
is a relatively senior member of the bar. His reputation will be important to
him. The Supreme Court of Canada recognized a good reputation to be “the
cornerstone of a lawyer’s professional life” (Hill v. Church of Scientology,
[1995] 2 S.C.R. 1130 at para. 118). The explicit findings that I have made
about his conduct already constitute a very serious reprimand. They constitute,
for counsel who regularly appears before this court, a significant admonishment
and significant reproach. They unequivocally signal the court’s disapproval.

[58]        
I do not consider that such reproach need be supplemented or reinforced
by an award of special costs. At the same time I consider that some cost award,
in addition to the conceded award for party and party costs, is appropriate.

[59]        
Sections 2(5) and 2(6) of Appendix B of the Rules respectively provide:

(5)  If, after
it fixes the scale of costs applicable to a proceeding under subsection (1) or
(4), the court finds that, as a result of unusual circumstances, an award of
costs on that scale would be grossly inadequate or unjust, the court may order
that the value for each unit allowed for that proceeding, or for any step in
that proceeding, be 1.5 times the value that would otherwise apply to a unit in
that scale under section 3 (1).

(6)  For the purposes of subsection (5)
of this section, an award of costs is not grossly inadequate or unjust merely
because there is a difference between the actual legal expenses of a party and
the costs to which that party would be entitled under the scale of costs fixed
under subsection (1) or (4).

[60]        
Though the foregoing provisions no longer expressly speak of “increased
costs” this court has continued to look to earlier provisions, either in the
current Rules or in the former Rules, for guidance; see for example Luu v. Wang,
2012 BCSC 626, at paras. 65-67.

[61]        
In National Hockey League v. Pepsi-Cola Canada Ltd. (1995), 122
D.L.R. (4^th) 421, 2 B.C.L.R. (3d) 13 (C.A.) the court explained some
of the differences between special costs and increased costs:

32  Misconduct may lead either to an award of
increased costs or, where increased costs would in any event be appropriate, to
an award amounting to a higher proportion of special costs than would otherwise
have been the case. In neither case is the result intended to punish the
offending party. Punishment is a primary function of the discretion to award
special costs, a discretion which may only be exercised when the conduct in
question can properly be regarded as at least reprehensible. Increased party
and party costs are intended as an indemnity: Bradshaw Construction Ltd. v.
Bank of Nova Scotia, supra.

33  But where one
party to an action is guilty of misconduct in the litigation, and the innocent
party is required to spend time and effort responding to such conduct, in most
cases it would be unjust if the latter was not adequately indemnified for the
costs associated with defending against that which should never have happened.
It is in that sense that, whether reprehensible or not, the misconduct of one
party is relevant when a court is considering or exercising the discretion to
award increased costs to the other.

[62]        
It seems clear that misconduct can constitute “unusual circumstances”
causing ordinary costs to be “grossly inadequate or unjust” thereby justifying
an award under s. 2(5) of Appendix B; see 380876 British Columbia Ltd..
v. Ron Perrick Law Corp., 2009 BCSC 1209 at para. 37; Luu at para. 65.

[63]        
In some cases where costs have been awarded under section 2(5) of
Appendix B the court has awarded such costs in circumstances where an award of
special costs is not warranted, but some response to inappropriate conduct was considered
appropriate; see On Call Internet Services Ltd. v. TELUS Communications
Company, 2010 BCSC 1031 at paras. 8-11.

[64]        
I do not understand such cases to preclude reliance on section 2(5) of
Appendix B where a court considers that conduct warranting an award of special
costs is made out but nevertheless declines to make that award. Instead, I
consider that in such cases s. 2(5) of Appendix B remains available, not
to punish, but rather to indemnify a party for the misconduct of another party
or, in this case, of counsel.

[65]        
The material before me indicates that the legal fees that the defendant
ICBC paid for work done between April 2 (the week preceding trial) and April
27, 2012 is approximately $81,167.50 plus disbursements of $749.70 and further
disbursements in the amount of $43,116.53 that the defendant ICBC paid directly
to various expert witnesses. The units of legal costs at Scale B, on the other
hand, would likely amount to costs thrown away of approximately $21,160 plus
HST of 12%.

[66]        
I consider such a cost award to be grossly inadequate in the unusual
circumstances of Mr. Harding’s misconduct that gave rise to the mistrial. It
is therefore appropriate that Mr. Harding pay the increased costs or the
“uplift” provided for in Section 2(5) of Appendix B of 1.5 times the value that
would otherwise apply under Scale B.

[67]        
Counsel for the defendant ICBC agreed that any assessment relevant to an
award of either party and party costs or costs under section 2(5) of Appendix B
should be deferred until after the conclusion of Mr. Walker’s upcoming
trial.

“Voith
J.”