IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Peters v. Ortner, |
| 2014 BCSC 509 |
Date: 20140326
Docket: M112769
Registry:
Vancouver
Between:
Laverne Charles
Peters
Plaintiff
And
Lisa Marlena
Ortner, and
Enterprise Rent-A-Car Canada Ltd
Defendants
Before:
The Honourable Madam Justice Harris
Reasons for Judgment on Costs
Counsel for Plaintiff: | S. T. Cope |
Counsel for Defendants: | J. W. Marquardt |
Place and Date of Hearing: | Vancouver, B.C. March 18, 2014 |
Place and Date of Judgment: | Vancouver, B.C. March 26, 2014 |
Nature of the Application
[1]
The defendants apply pursuant to Rule 14-1(15) of the Supreme Court
Civil Rules for apportionment of costs arising from the trial of this matter.
[2]
The defendants seek an order that the plaintiff should only be awarded
60% of the costs, offset against 40% of the defendants costs. Alternatively,
the defendants seek an order that the plaintiffs be awarded costs only for
three days of trial and preparation.
[3]
The plaintiff opposes the apportionment of costs. The plaintiff claims
that there is no justification for such an order and the general rule that the
successful party is entitled to his costs should apply.
Background
[4]
On October 10, 2013, the court granted judgment for the plaintiff at
trial, Peters v. Ortner, 2013 BSCS 1861. The judgment followed a five
day trial of the plaintiffs personal injury claim against the defendants for
damages arising out of a motor vehicle accident which occurred on June 25,
2009.
[5]
At trial, the plaintiff sought damages of $1,029,730 including $125,000
for non-pecuniary damages, $65,000 for past wage loss plus an additional $9,000
for loss of consulting income, $80,000 for loss of earning capacity, $5,000 for
cost of future care and $10,730 for special damages.
[6]
The plaintiff was ultimately awarded $143,730, divided as follows:
Non-pecuniary damages $80,000
Past income loss $
0
Future income loss $50,000
Cost of future care $
3,000
Special damages $10,730
[7]
The defendants submit that the plaintiffs claim for past loss of income
and loss of earning capacity was virtually rejected in that the court did not
accept that the plaintiff was damaged goods- which the plaintiff had
maintained. The defendants contend that, had the plaintiff satisfied the court
that he was indeed damaged goods, this would have led to a significant award
for lost earnings. The defendants note that the award only barely surpassed the
defendants offer of settlement and was far lower than the amount claimed by
the plaintiff at trial.
[8]
The defendants estimate that two days of trial were occupied by the
evidence on the issue of past wage loss and economic loss generally.
[9]
The plaintiff submits that it is an overstatement for the defendants to
suggest that the plaintiff failed to establish he was damaged goods. The
plaintiff notes that the court accepted that the MVA caused psychological
injury to the plaintiff. While it found the psychological effects were not of a
permanent nature, it nevertheless awarded damages for future economic loss.
With respect to the plaintiffs claim for past income loss, although the court
did not accept the claim, it cannot be said that, by advancing the claim, the
plaintiff complicated or unnecessary prolonged the trial.
[10]
The plaintiff further submits that the trial was not lengthy. The
plaintiffs claim for economic loss did not put the defendants to additional
expense or unusual effort to meet the plaintiffs claim for lost earnings. The
defendants did not call any expert evidence to address the magnitude of the
claim.
[11]
The only litigation conduct that delayed the time spent at trial,
according to the plaintiff, was the defendants unsuccessful adjournment
application made at the commenced of the trial which, the plaintiff submits,
delayed the start of the trial and disrupted the orderly presentation of the
plaintiffs case.
Rule 14-1(15)
[12]
The criteria which must be established for the court to be satisfied
that the apportionment of costs is justified was set out in Sutherland v.
Canada (Attorney General), 2008 BCCA 27:
1.
The party seeking apportionment must establish that there are separate
and discrete issues upon which the ultimately unsuccessful party succeeded at
trial;
2.
There must be a basis on which the trial judge can identify the time
attributable to the trial of those separate issues; and
3.
It must be shown that apportionment would effect a just result.
[13]
The legal principle underlying Rule 14-1(15) and its predecessor, Rule
57(15), was explained by Madame Justice Prowse in Webber v. Canadian Aviation
Insurance Managers Ltd., 2003 BSCS 274, at para. 23:
The legal principle that emerges
from these cases is that this rule is designed to redress the basic unfairness
which would result if a successful party were permitted to recover costs on unnecessary
issues that it (the ultimately successful party) deliberately raised at trial;
that it was not successful on; and that increased the cost of the trial to a
substantial degree.
[14]
And in Bailey v. Victory, [1993] B.C.J. No. 901, Madame Justice
Ryan summarized the principles regarding the operation of Rule 57(15) which
emerge from the case law in this way:
1. Rule
57(15)
is concerned with the success on particular issues or parts of the
proceeding, not with success in terms of the relief granted.
2. An issue
within the meaning of r. 57(15) is one which is a neatly severable party of the
pleadings or proceedings.
3. It is an
error in principle to award every litigant costs on issue which the opposing
party has failed.
4. Proof of
misconduct is not a condition precedent to making an order under the rule.
5. The court
will consider conduct in determining the severity of the order; e.g. whether to
deprive a party of his costs or to award costs in his opponents favour.
6.
Apportionment of costs should occur in relatively few cases.
Discussion
[15]
In considering these principles in context of the case before me, I find
the following circumstances to be particularly relevant to the defendants
claim for apportionment.
[16]
First, with respect to the defendants contention that the apportionment
of costs is justified on the basis the quantum of damages awarded for economic
loss was considerably less than the amount the plaintiff claimed, I note that
while I did not accept the plaintiffs claim for past wage loss, I did accept
the accident caused the plaintiff a loss of earning capacity and awarded him
$50,000. This award of damages was considerably less than claimed, but it is
still a significant award for economic loss. In my view, the defendant was not
wholly successful on the issue of economic loss.
[17]
Second, with respect to the defendants contention that the trial was
extended unnecessarily by the plaintiffs claim for economic loss, I note that
the circumstances of this case are distinguishable from the personal injury
cases to which the defendants cited. In those cases, the trial judges referred
to conduct on the part of the successful party which supported their conclusion
that it would not be fair to allow that party to recover all of the costs.
[18]
For example, in Lee v. Jarvie, 2013 BCCA 515 the trial judge was
critical of the plaintiffs credibility and considered that the plaintiffs
experts had taken on an advocacy role; in Shearsmith v. Houdek, 2008
BCSC 1314, the trial judge found the plaintiffs claim to be very exaggerated
and many of the witnesses testified entirely or primarily in relation to the
issues in which the plaintiff was unsuccessful; in Chohan v. Lawrence (28
January 2009), New Westminster M91719 (B.C.S.C.) , the trial judge found that a
large part of the plaintiffs claim fell due to his own lack of credibility;
and in Bailey, the trial judge found that the plaintiff had exaggerated
the work he was required to do and his ability to do it, which claim consumed
much of evidence at trial.
[19]
In contrast to the above noted cases, in the instant case, the
plaintiffs credibility was not seriously challenged at trial, the trial was
conducted in an efficient manner, and the length of the trial was not unnecessarily
prolonged because of the plaintiffs claim for economic loss. This was a five
day trial, with time used during the first day for the defendants adjournment
application.
[20]
The only witness called exclusively to address past income loss was Mr. Leighton,
who was a relatively short witness.
[21]
There were a number of other witnesses called by the plaintiff on the
issue of economic loss. However, there was overlap in their evidence with
respect to the plaintiffs claim for past and future economic loss. I note, as
well, that the defendants did not call expert evidence on this aspect of the
plaintiffs claim and, therefore, did not incur time and expense for such
witnesses.
[22]
More importantly, I accepted the plaintiffs claim for damages for loss
of future earning capacity. Therefore, the plaintiff needed those witnesses to
prove his economic loss and the time utilized was not increased appreciably by
the magnitude of the plaintiffs claim.
[23]
I am mindful of the caution expressed by Esson, C.J.S.C. (as he then
was) that applications to apportion should not be a regular part of
litigation, Hammond v. Assn. of British Columbia Professional Foresters,
[1992] B.C.J. No. 3026; 31 A.C.W.S. (3d) 902 (S.C.) and the general rule
expressed in Rule 14-1(9) that unless the court orders otherwise, the costs of
a proceeding must be awarded to the successful party.
[24]
In this case, I am not satisfied that I should exercise my discretion to
apportion costs. The defendants have not established that the failure to
apportion costs in this case would be manifestly unfair or unjust.
Conclusion
[25]
The defendants apportionment application is, therefore, dismissed.
Harris J.