IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140401

Docket: M084600

Registry:
Vancouver

Between:

Daniel A. Wallman

Plaintiff

And

John Doe, Jack Doe
Company Ltd.,
Insurance Corporation of British Columbia,
Rajinder S. Gill, British Columbia Transit, and Whistler Transit Ltd.

Defendants

Before:
The Honourable Mr. Justice G.C. Weatherill

Oral Reasons for Judgment on Costs

In
Chambers

[1]            
THE COURT: On January 17, 2014, I issued my reasons for judgment
in this personal injury matter. The citation is 2014 BCSC 79.

[2]            
The plaintiff was awarded damages in the amount of $5,944,712. Subsequent
to the pronouncement of my reasons for judgment, the parties agreed that
additional amounts for pre‑judgment interest, management fees, and tax
gross‑up would be added to the award that I made, thereby increasing the
amount of the judgment to $6,263,209.33.

[3]            
The plaintiff now applies for the following orders relating to costs in
his favour:

a)    costs at Scale
C;

b)    costs for two
counsel for preparation and attendance at trial; and

c)     a Sanderson
order, requiring the transit defendants, as that term was defined in the
reasons for judgment, to pay the costs of the successful defendant, the
Insurance Corporation of British Columbia ("ICBC").

[4]            
Dealing first with the scale of costs, Scale B is applicable to matters
of ordinary difficulty. Scale C is applicable to matters of more than ordinary
difficulty. That was made clear by the decision two weeks ago of the B.C. Court
of Appeal in Meghji v. British Columbia (Ministry of Transportation and
Highways), 2014 BCCA 105, at paras. 135 to 136.

[5]            
The relevant factors to be considered when determining whether a case
was of more than ordinary difficulty were set out by this court in Danicek
v. Li, 2011 BCSC 444 at para. 40. They are:

a)    the length of
trial;

b)    the complexity
of issues involved;

c)     the number
and complexity of pre-trial applications;

d)    whether the
action was hard fought with little conceded;

e)    the number and
length of examinations for discovery;

f)      the
number and complexity of expert reports; and

g)    the extent of
the effort required in the collection and proof of facts.

[6]            
By any measure, this was a complex case that, although courteously and
cooperatively fought, was nevertheless hard fought with little, if anything,
conceded. The defendants’ position throughout was that the plaintiff’s alleged
brain injury was not real. The trial occupied 29 days. Forty‑three
witnesses were called by the parties, including 16 engineering and medical
experts. Sixteen expert reports were exchanged.

[7]            
The engineering experts provided opinions regarding the biomechanics of
and the acceleration and other forces imparted upon a human body during a rear‑end
collision, mechanical engineering, accident reconstruction, and Monte Carlo
simulations to predict the probability of various accident scenarios.

[8]            
The medical expert evidence included opinions of psychiatrists,
psychologists, neurologists, a neuro‑opthalmologist, physiatrist and a speech
pathologist.

[9]            
In addition, there was expert evidence from occupational therapists,
rehabilitation and vocational consultants, and economists.

[10]        
The defendants conducted several pre‑trial examinations of nine
witnesses, conducted two and a half days of examinations for discovery of the
plaintiff, during which he was asked 2,669 questions. Considerable steps were
taken by the parties in an effort to prove or disprove the plaintiff’s claim
that he had suffered a mild traumatic brain injury during the accident. Most,
if not all, of the expert evidence was focused on whether the plaintiff
sustained a mild traumatic brain injury as a result of a relatively minor rear‑end
impact during the accident.

[11]        
In addition, there were several pre‑trial applications, most of
which were of ordinary difficulty, but one involved the plaintiff’s successful
motion to strike the defendants’ jury notice on the basis that the case had
become complex and would be too lengthy for a jury to retain the evidence. This
application was the subject of two hearings in the Court of Appeal.

[12]        
In my view, this action was plainly one of more‑than‑ordinary
difficulty. The plaintiff is entitled to an award of costs at Scale C.

[13]        
Dealing next with the application for costs of two counsel. As I have
stated, this was a complex claim involving many technical issues and many
witnesses. A significant volume of documents and evidence had to be amassed,
digested, and presented. The attendance of two counsel on behalf of the
plaintiff allowed the trial to proceed smoothly and efficiently. It enabled
counsel to provide the court with extensive and comprehensive summaries of the
evidence and submissions immediately following the close of evidence.

[14]        
The transit defendants themselves had two senior and experienced counsel
in attendance at trial with, I am told, a combined 58 years of experience at
the bar. Counsel for the transit defendants conceded during submissions today
that "there is no doubt that this was not an ordinary personal injury
action".

[15]        
In my view, it was entirely appropriate and reasonable for two counsel
to have been present. The plaintiff is entitled to recover the costs of two
counsel for the preparation of and 70 percent attendance at trial; i.e., 70
percent of the second counsel. That reduction is due to the fact that, in my
view, two counsel were not required 100 percent of the time and in particular
during the lengthy video evidence.

[16]        
Now turning to the Sanderson order. A Sanderson order is
one in which an unsuccessful defendant is ordered to pay the costs of a
successful defendant. Rule 14‑1(18) has codified the Sanderson
order. It reads:

If the costs of one defendant
against a plaintiff ought to be paid by another defendant, the court may order
payment to be made by one defendant to the other directly . . .

[17]        
 The applicant for a Sanderson order must demonstrate that it was
reasonable for the plaintiff to have joined the successful defendant in the
action. If this threshold is met, the judge then exercises his or her
discretion as to whether a Sanderson order is just in the circumstances:
Times Square Holdings Ltd. v. Shimizu, 2001 BCCA 667 at para. 9.

[18]        
In my view, the threshold test is easily met in this case. It was the
position of the transit defendants throughout the proceeding and the trial that
the accident was caused or contributed to by the unidentified snow plow driver.
It was reasonable for the plaintiff to have joined the unidentified snow plow
driver and his or her employer, John Doe and John Doe Company Ltd.
respectively, as defendants. Indeed, I found that John Doe was negligent in
causing the snow plow to slide into the intersection, and that Jack Doe Company
Ltd. was vicariously liable for the negligence of John Doe.

[19]        
Because the identity of the snow plow driver and this company were not
ascertained, ICBC was joined as a nominal defendant pursuant to s. 24 of
the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231. However, in my view,
the circumstances of this case are such that it would not be just to order that
the transit defendants pay the costs of ICBC, who was successful in defending
its liability under s. 24. I say that because the plaintiff failed to
satisfy me that he had made all reasonable efforts to ascertain the identity of
the snow plow driver, a statutory prerequisite to a finding of liability
against ICBC under s. 24. As I stated in the reasons for judgment:

The evidence is that the Snow
Plow was a large “highway” snow plow. In my view, “all reasonable efforts”
would have included contacting the known or easily identifiable highway snow
plow operators and contractors in an attempt to determine which drivers were operating
snow plows on the morning of the Accident and in what location. Those enquiries
were well within the resources of the plaintiff and/or his counsel. No such
steps were taken. Indeed, no effort whatsoever was made to ascertain the
identity of the driver of the Snow Plow. The plaintiff did not provide an
explanation for his failure to do so.

[20]        
It was not reasonable, in my view, to have joined ICBC as a defendant
when no steps had been taken to contact the highway snow plow operators, which
could easily have been done. In my view, that omission, in the face of s. 22(5)
[sic] of the Insurance (Vehicle) Act, rendered the claim against ICBC
doomed to fail.

[21]        
Accordingly, there will be an order that the plaintiff is entitled to
his costs at Scale C, including the costs for the preparation and attendance of
two counsel. The application for a Sanderson order is dismissed.

[22]        
Due to its limited participation and involvement in this action, ICBC is
entitled to its costs from the plaintiff at Scale B.

[23]        
MR. GOURLAY: A couple of things arising, My Lord.

[24]        
THE COURT: Yes, is there anything arising?

[25]        
MR. GOURLAY: Just as a housekeeping matter, you said it is s. 22(5)
and I believe you meant s. 24(5).

[26]        
THE COURT:  I meant s. 24(5), I apologize.

[27]        
MR. GOURLAY: And with respect to the order for two counsel, just
how it should read. Was it two counsel in full to prepare, but 70 percent of
the cost for attendance?

[28]        
THE COURT: Correct.

[29]        
MR. GOURLAY: Thank you, My Lord.

[30]        
THE COURT:  Anything arising, Mr. Armstrong?

[31]        
MR. ARMSTRONG: So effectively when my friend prepares his tariff,
it will be 1.7.

[32]        
THE COURT: For trial.

[33]        
MR. ARMSTRONG: For trial, yes, and two for preparation, 1.7 for
trial.

[34]        
THE COURT: Correct. Two for prep.

[35]        
MR. ARMSTRONG: One point seven.

[36]        
THE COURT: And I am just wondering about the 1.7. It is one plus —

[37]        
MR. ARMSTRONG: Point seven.

[38]        
THE COURT: — 70 percent of one.

[39]        
MR. ARMSTRONG: Yes.

[40]        
THE COURT: I do not know whether that mathematically equates to 1.7.

[41]        
MR. ARMSTRONG: I’m pretty sure it does.

[42]        
THE COURT: All right.

[43]        
MR. GOURLAY: And just to be entirely clear as well, Mr. Arvisais
or ICBC’s costs are only for the days that they were actually in attendance.

[44]        
THE COURT: Yes, only for the days they were in attendance. So you are
not claiming for costs of attendance at trial when Mr. Arvisais was not
here.

[45]        
MR. WONG: Yes, My Lord.

[46]        
THE COURT: All right.

_____________ “G.C.
Weatherill J”______________
G.C. Weatherill J.