IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140826

Docket: M104255

Registry:
Vancouver

Between:

Marie
Geralda Saintonge

Plaintiff

And

Pardeep
Puni and Balbir Singh Puni

Defendants

– and –

Docket: M110595

Registry:
Vancouver

Between:

Marie
Geralda Saintonge

Plaintiff

And

Romy
Katherine Schneider and Jeffery Allen Lammerts

Defendants

Before:
Master R.W. McDiarmid

Reasons for Judgment

[1]            
These are applications for directions brought pursuant to Rule
14-1(7)(a) of the Supreme Court Civil Rules, B.C. Reg. 168/2009 [Civil
Rules]. The issue requires a consideration of Rule 14-1(1)(f)(i)(ii), which
reads as follows:

(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:

(f) subject to subrule (10) of this
rule,

(i)   the only relief granted in
the action is one or more of money, … and the plaintiff recovers a judgment in
which the total value of the relief granted is $100,000 or less, exclusive of
interest and costs,

(ii)   …in which event, Rule 15-1(15) to (17) applies to the
action unless the court orders otherwise.

[2]            
Subrule (10) deals with recovery of a sum within the jurisdiction of the
Provincial Court under the Small Claims Act, R.S.B.C. 1996, c.430 (i.e.
less than $25,000) and is inapplicable.

[3]            
Rule 15-1 deals with fast track litigation proceedings. Subrule (15)
reads as follows:

Unless the court otherwise orders or the parties consent, and
subject to Rule 14-1 (10), the amount of costs, exclusive of disbursements, to
which a party to a fast track action is entitled is as follows:

(a) if the time spent on the hearing of the trial is one day
or less, $8000;

[4]            
Subrule (16) dealing with offers to settle is inapplicable.

[5]            
Subrule (17) requires the addition of taxes to be added to the amount to
which a party is entitled under subrule (15).

[6]            
Action No. M104255 relates to a motor vehicle accident which occurred on
November 13, 2008. Action No. M104255 was commenced on September 2, 2010.

[7]            
Action No. M110595 relates to a motor vehicle accident which occurred on
October 17, 2009. Action No. M110595 was commenced on February 2, 2011.

[8]            
Valmon J. LeBlanc acted for the plaintiff in both actions and swore an
affidavit. Arthur Ross and Sandra Li-Seller, both lawyers with the law firm of
Pryke Lambert Leathley Russell LLP, acted for the defendants in both actions.

[9]            
At the commencement of the application, I granted leave for Sandra
Li-Seller to speak to her own affidavit. Nothing in her affidavit was
controversial. Nothing was contradicted by Mr. LeBlanc’s affidavit.

[10]        
Mr. LeBlanc sets out in paragraphs 3, 4, 5, and 6 pleadings relating to
both accidents as follows:

3.         In the First Accident,
the Plaintiff was driving northbound along 128^th Street in the City
of Surrey, when the Defendant so negligently operated a vehicle that she struck
the Plaintiff’s vehicle. As a result of this accident, the Plaintiff pled the
following injuries:

(a)        Pain, tenderness, and restriction
of movement in the cervical, thoracic and lumbar spine, relating musculature
and ligaments;

(b)        headaches;

(c)        blurred vision;

(d)        ringing in ears;

(e)        pain in shoulders;

(f)         driving anxiety;

(g)        sleep loss;

(h)        tingling fingers in both
hands;

(i)         mid-chest pain;

(j)         bruised chest;

(k)        hip pain;

(l)         pain in both legs;

(m)       pain in left knee;

(n)        pain in left ankle; and

(o)        such further and other injuries as counsel may
advise.

4.         As a further
consequence of the injuries suffered by the Plaintiff in the First Accident,
the Plaintiff suffered from impaired enjoyment of life, impairment of
homemaking functions and incurred past and future wage loss, loss of earning
capacity and special damages.

5.         In the Second
Accident, the Plaintiff was driving southbound along Scott Road in the City of
Surrey, when the Defendant so negligently operated a vehicle that she struck
the Plaintiff’s vehicle. As a result of this accident, the Plaintiff pled the
following injuries:

a)   Pain,
tenderness, and restriction of movement in the cervical, thoracic and lumbar
spine, relating musculature and ligaments;

(b)  headaches;

(c)  ringing in ears;

(d)  pain in trapezius and
shoulders;

(e)  chest pain;

(f)   sleep disturbance;

(g)  exacerbation
of injuries sustained in the first motor vehicle accident; and

(h)  such further and other injuries as counsel may advise.

6.         As a further
consequence of the injuries suffered by the Plaintiff in the Second Accident,
the Plaintiff suffered from impaired enjoyment of life, impairment of homemaking
functions and incurred past and future wage loss, loss of earning capacity and
special damages.

[11]        
Dealing with the work done on behalf of the plaintiff, Mr. LeBlanc
deposes in paragraph 7 as follows:

7.         The Plaintiff retained
me on January 8, 2009, at which point I conducted initial interviews with her.
In the months and years following my retainer, I also met and discussed the
circumstances of the accidents and their aftermath with the Plaintiff’s husband
and several of her friends. I concluded numerous interviews, extensive
telephone conversations, and investigations as to the Plaintiff’s symptoms and
treatment prior to commencing a claim.

[12]        
Paragraphs 5, 6, 7, and 8 of Sandra Li-Seller’s affidavit are as
follows:

5.         By way of Consent Order filed on April 14, 2011,
the parties agreed that the two court actions would be heard together.

6.         Neither of the actions has been endorsed as being
subject to fast track.

7.         In practice, the two actions were handled as a
single proceeding for many of the substantive steps required in the litigation
process, including but not limited to the following:

(a)        The Plaintiff and Defendants
each served a single List of Documents for both actions. Attached to this
Affidavit and marked as Exhibit “A” is the Plaintiff’s List of Documents.
Attached to this Affidavit and marked as Exhibit “B” is the Defendants’
First Amended Combined List of Documents.

(b)        Instructions and correspondence
with experts would have dealt with both actions together.

(c)        Preparation of witnesses for
trial would have related to both actions, with the exception of Mr. Ian Gamble,
a witness to the first accident. There were no independent lay witnesses to the
second accident.

(d)        The defence concluded one
examination for discovery of the Plaintiff for both actions, although the
discovery was conducted over the course of two days. Attached to this Affidavit
and marked as Exhibit “C” is a true copy of page 1 of the official
transcript of the examination for discovery of the Plaintiff conducted on
February 26, 2013. Attached to this Affidavit and marked as Exhibit “D”
is a true copy of page 1 of the official transcript of the continued
examination for discovery of the Plaintiff conducted on July 8, 2013.

(e)        There was a single Trial
Management Conference held to deal with both actions, which I attended as
counsel for the Defendants in both actions.

(f)         All settlement negotiations
dealt with the Plaintiff’s claims arising in both actions.

[13]        
On behalf of the plaintiff, her counsel prepared separate trial briefs
for each action, as did the defendants. The Puni defendants denied liability.
The Schneider and Lammerts defendants admitted liability.

[14]        
As set out in paragraph 12 (c) of Mr. LeBlanc’s affidavit, the total
time of the plaintiff’s examinations was approximately six hours and 45
minutes. Rule 15-1(11) sets out that absent consent of the party being
examined, examinations for discovery of a party of record must not, in total,
exceed in duration two hours.

[15]        
In his affidavit at paragraphs 9 and 10, Mr. Leblanc deposes as follows:

9.         Action nos.M104255 and M110595 had been combined
for the purposes of trial. Counsel had reserved May 26 through June 3, 2014 for
the trial of these actions.

10.       On May 7, 2014, the
Defendants accepted a settlement offer from the Plaintiff to settle both
actions for $65,000.00, exclusive of costs and disbursements.

[16]        
In his affidavit, Mr. LeBlanc deposes to extensive steps being taken on
behalf of the plaintiff. He deposes to an exchange of lengthy lists of
documents, disclosure of voluminous documents including medical records and
treatment records, preparation for the two examinations for discovery,
preparation of the plaintiff for the two examinations for discovery where she
was discovered, conducting discoveries of the defendants in both actions,
arranging medical legal reports and independent medical examinations, three pre-arranged
by counsel for the plaintiff, two arranged by counsel for the defendants,
conducting extensive witness preparation with the plaintiff’s husband, friends,
a liability witness to the first accident and expert medical witnesses,
attending a trial management conference and serving notices to admit for both
actions.

[17]        
One trial management conference was conducted; separate trial briefs
were prepared in each action by the plaintiff, and separate trial briefs were
prepared in each action by the defendants. Although parts of the plaintiff’s
trial briefs are identical, some aspects of the trial briefs differ. Parts 2
through 6 of the trial brief in Action No. M110595 refer to the trial brief
filed in Action No. M104255.

APPLICABLE LAW

[18]        
The purpose of costs is discussed in Skidmore v. Blackmore, (16
February 1995), Vancouver CA012548, a decision of a five-judge division of our
Court of Appeal.

[19]        
At para. 28, Mr. Justice Cumming writes:

[28]      In any event, the view
that costs are awarded solely to indemnify the successful litigant for legal
fees and disbursements incurred is now outdated. A review of Rule 37, which
deals with offers to settle, reveals that in certain circumstances a party may
be entitled to costs, or double costs, or to no costs at all. One of the
purposes of the costs provisions in Rule 37 is to encourage conduct that
reduces the duration and expense of litigation, and to discourage conduct that
has the opposite effect. Thus, although it is true that costs are awarded to
indemnify the successful litigant for legal fees and disbursements incurred, it
is also true that costs are awarded to encourage or to deter certain types of
conduct.

[20]        
Rule 37 is now encompassed in the Civil Rules at Rule 9-1.

[21]        
In motor vehicle litigation, access to justice for persons injured
through the negligent driving of others is usually achieved through the ability
of the plaintiff to retain counsel utilizing a contingency fee agreement. Costs
awards partially indemnify the successful litigant for those legal fees.

[22]        
In Varga v. Shin, 2012 BCSC 1643, the plaintiff’s claim was
settled for $65,000.00. The matter was not set subject to Rule 15-1, but the
defendants successfully argued by virtue of Rule 14-1(1)(f)(i), the cost
provision of Rule 15-1.

[23]        
At para. 19, Registrar Sainty writes:

[19]      In support of this
submission Ms Taylor cites Axten v. Johnson, 2011 BCSC 1005 [Axten].
In that case Ker J. noted (at paragraph 37) that, where a case is settles for
under $100,000, it is subject to R. 15-1 by virtue of the exceptions found
within R. 14-1(1)(f).

[24]        
At para. 30, Registrar Sainty writes:

[30]      As
I have found that the action falls within the provisions of R. 15-1(15), thus
the plaintiff is entitled to some proportion of the $6,500 "cap"
available (see Duong v. Howarth,
2005 BCSC 128; and Anderson v.
Routbard, 2007 BCCA 193 [Anderson]

[25]        
The parties agree that in this matter before me, the issue is whether
the plaintiff is entitled to the $6,500 cap available for settlement of a case
before the commencement of trial or whether the plaintiff is entitled to the
$6,500 cap in both actions.

[26]        
In Bowen v. Martinec, 2008 BCSC 104, Mr. Justice Pitfield
considered the interaction between predecessor Rule 66 and 37. Bowen was
a case where an offer to settle was accepted before trial in an action to which
then Rule 66 of the Rules applied. Mr. Justice Pitfield analyzed the
issue by firstly referring in detail to the Court of Appeal’s decision in Anderson
v. Routbard, 2007 BCCA 193, where at paras. 12-15 of Bowen he
writes:

[12]  In Anderson v. Routbard, 2007 BCCA
193, 67 B.C.L.R. (4th) 66, the Court of Appeal considered the defendant’s
entitlement to costs in circumstances where the plaintiff declined to accept an
offer to settle and the plaintiff’s action was dismissed following a two-day
trial. The Court of Appeal referenced the decision of Macaulay J. in Duong
and endorsed his statement of principle that the main purpose of sub-rules
66(29) and (29.1) was to avoid the necessity of taxation. At para. 47, the
court said the following:

I also agree with Macaulay J. that
the intent of the Rule was to avoid the necessity of a taxation and that it
would frustrate that intent to order a taxation of costs under the Rule. For
that reason, his approach to double costs also makes sense. Rather than have
double costs assessed under Appendix B and then taxed, Rule 66 provides a
mechanism whereby double costs can be given effect without the necessity of
taxation. That methodology is described by Macaulay J. in the passage quoted
from his reasons for judgment at para. 40, supra.

[13]  The court stated that it would give credence
to the offer to settle and follow the same general approach that Macaulay J.
outlined in Duong. The court observed, however, that the defendant’s
offer was delivered much earlier in the proceedings, some 19 months prior to
trial. In the result, the Court of Appeal awarded the defendant double costs,
but made a deduction to allow for the fact that the plaintiff had engaged in
some amount of pre-trial preparation for which it was entitled to costs, but
not double costs. In this regard, the court said the following at para. 49:

By far, the greatest portion of the
legal preparation was done following the offer to settle. In these
circumstances, I would exercise my discretion to award the defendant double
costs for the entire period ($4,800 x 2 = $9,600) less a 10% discount for work
done prior to the offer to settle. The result is an order of costs in the
amount of $8,640. While this estimate of costs is somewhat arbitrary, it avoids
the need for taxation, as envisaged by subrule 66(29), and gives significant
credit to the defendant for making an early offer to settle, in accordance with
Rule 37.

[14]  The Court of Appeal exercised discretion to
adjust the award for double costs in order to give effect to Rule 37(24) which
stipulates that where a plaintiff’s claim is dismissed following rejection of
an offer, the defendant is entitled to costs assessed to the date the offer was
delivered, and to double costs assessed from that date. By allowing a 10%
reduction from a double costs award, the court was reflecting its view that 40%
of the pre-trial work was completed before the offer was made.

[15]  The principal
point that emerges from Anderson is that where an offer has been made
but rejected, and the matter proceeds to trial, then depending upon the result,
the terms of the offer and the time at which it was made, the costs award
should reflect the offer to settle, but be quantified by reference to the cap
on costs imposed by Rule 66.

[27]        
At para. 25, he concludes the decision as follows:

[25]  It
follows that the answer to the stated case is that costs in an action subject
to Rule 66, settled before trial pursuant to an offer of settlement must be
assessed by reference to the fixed scale of costs under Rule 66(29), and not by
reference to Appendix B to the Rules of Court.

[28]        
Both counsel agree that costs must be assessed by reference to the fixed
scale of costs.

[29]        
In Christen v. McKenzie, 2013 BCSC 1317, Madam Justice
Arnold-Bailey considered the issue of whether a plaintiff would be entitled to
a full amount of $6,500 attributed to preparation under Rule 15-1(15)(a) or a
lesser amount. She gives guidance in her decision to criteria to consider. At
para. 35 she writes:

[35] 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.

[30]        
In Benz v. Coxe, 2012 BCSC 1043, Registrar Sainty confirms the
rationale for the cap in the event that there is a settlement prior to
commencement of trial.

[31]        
At para. 16 of her oral reasons she states:

[16]      Firstly, I think it is
important to note, as Harvey J. confirmed in Gill v. Widjaja, supra,
that Rule 15-1(15) gives the Registrar wide discretion in determining the
appropriate tariff amount. If I were to accede to Mr. Cope’s submission — that
in every case you get the cap unless there are special circumstances — I
believe that, would be taking away from the discretion given to the Registrar
to make these types of decisions.

[32]        
In Musgrove v. Elliot, 2014 BCSC 40, Mr. Justice Johnston
rendered reasons for judgment on a case in which the plaintiff became entitled
to his costs of two actions which were heard at the same time and which arose
out of two motor vehicle accidents: Musgrove v. Elliot, 2013 BCSC 1707.

[33]        
Both actions were subject to Rule 15-1. The respective positions of the
parties are set out in paras. 2 and 3 of the decision as follows:

[2]        The defendants in each of the actions argue that
the plaintiff’s costs should be assessed on the basis that both actions were
subject to Rule 15-1 (Fast Track Litigation), that the costs should be allowed
in the first action at $11,000 under Rule 15-1(15)(c) for a trial lasting more
than two days, and that the court should exercise its discretion to reduce the
lump sum costs recoverable in the second action to a suggested $5,500.

[3]        The plaintiff argues
that neither of his actions ever fell under Rule 15-1 as they did not meet the
criteria set out in sub-rule (1) in that he did not concede that either action
was limited to $100,000, he did not consent to the application of the rule, and
the trial took nine days, plus written submissions.

[34]        
After concluding that Rule 15-1 applied to both of the actions before
him, Johnston J. writes at paras. 24-26 as follows:

[24]      The defendants seek to invoke the discretion of the
court to reduce the lump sum costs, otherwise recoverable, on the second action
– $11,000 – because of "efficiencies" achieved as a result of hearing
the two matters at the same time.

[25]      While there were likely some such efficiencies,
there were also complications from running two actions at the same time, as the
plaintiff was required to deal with the circumstances of the second accident
and the impact of any injuries suffered in the second accident on injuries
suffered in the first accident. The time spent on examining the plaintiff for
discovery was double what would have been allowed if there had been only one
action and many of the pleadings were necessarily separate as between the two
actions.

[26]      Two actions were
necessary to deal with two accidents. The defendants in each of the actions
have availed themselves of the costs certainty provided by Rule 15-1 by serving
notice in Form 61 in each action. I see no reason, in the circumstances of
these cases, to reduce the costs otherwise available to the successful
plaintiff in each of the two actions.

[35]        
In Schubert v. Knorr, 2009 BCSC 14, Master Hyslop, as she then
was, issued reasons for judgment in a case where the plaintiff presented two
bills of costs for assessment relating to two actions ordered to be tried at
the same time.

[36]        
The trial judge apportioned liability between the two actions but did
not apportion the costs awarded to the plaintiff.

[37]        
Master Hyslop at paras. 26-29 writes as follows:

[26]  The registrar has a discretion pursuant to
Appendix B in assessing costs when two actions were tried at the same time. In
exercising that discretion, the registrar is to consider:

9 Where 2 or more
proceedings have, by order, been tried at the same time or tried one after the
other and no order has been made as to apportionment of costs, the registrar
may

(a) assess 2 or more bills as one
bill,

(b) allow an item once or more than
once, or

(c) apportion the costs of an item
or of the whole bill between the proceedings.

[27]  The registrar must consider Rule 57(2):

Costs to be reasonable

(2) On an assessment of party and
party costs, the registrar shall allow those fees under Appendix B that were
proper or reasonably necessary to conduct the proceeding.

[28]  Although Mr. Justice Singh apportioned
liability between the two actions, he did not apportion the costs awarded to
the plaintiff.

[29]  The plaintiff has presented two bills of
costs seeking in each a duplication of tariff items. The plaintiff relies on Tiernan
v. Port Sidney Development Corporation, 2008 BCSC 251. In this case,
each plaintiff in each separate action was represented by the same solicitor.
One action was commenced in March of 2005, the other four months later. The
statement of claim sought the same relief and the statements of defence were
identical. By a consent order dated February 28, 2007, the trials were heard at
the same. Registrar Bouck in Tiernan stated the following:

[5] Counsel agree that the parties
required adjudication on the law, rather than a determination of factual
issues, to resolve the lawsuits. Nonetheless, the defendant’s representative
was examined for discovery, albeit briefly – in the first action for about 15
minutes; in the second action for about 45 minutes.

[6] A small number of documents
were exchanged. Notices to admit were delivered. The admissions made in
response shortened the time needed for trial. In fact, the plaintiff Coon did
not even attend the trial.

[7] In October 2005, the defendant
delivered an offer to settle in each action.

[8] The trial proceeded for one day
on April 3, 2007.

[9] Although not requested by the
trial judge, the defendant prepared a written argument addressing the legal
issues.

[10] Reasons for judgment were released about three weeks
later. The plaintiffs’ actions were dismissed with the court awarding the
defendant "its costs in each action at level three": 2007 BCSC
580 (CanLII), 2007 BCSC 580. An order has been entered reflecting the
court’s judgment, although that order was not before me. The order provides
that the defendant’s costs are to be at Scale B. It is suggested that the court
must have intended this Scale and not the former Scale 3.

[38]        
As set out by Pitfield J. in Bowen, costs governed by Rule 15-1
are not assessed under Appendix B. However, the principle expressed by Master
Hyslop in Schubert is of assistance. In that decision, she analyzed
tariff item duplication, utilized one of the actions which she characterized as
the “main bill of costs” and then assessed the costs in the second action to
reflect and disallow duplicate activities.

[39]        
In Peacock v. Battel, 2013 BCSC 1902, Mr. Justice Affleck issued
reasons for judgment on costs. Following trial, the plaintiff was awarded
damages in excess of her offer to settle. The defendants submitted that costs
should be assessed pursuant to Rule 15-1 and be limited to $11,000 for both
actions. The plaintiff sought double costs from the date of her offer to
settle.

[40]        
The plaintiff submitted that if costs were to be considered pursuant to
Rule 15-1(15), then $11,000 should be awarded for each action for a total of
$22,000.

[41]        
In the result, Affleck J. first of all determined that one costs award
of $11,000, modified by adding a further $1,500 for each of the additional days
of trial should form the starting point. He then determined that because the
plaintiff was awarded damages in excess of her offer to settle, it was
appropriate that he exercise the discretion to award double costs in fast track
cases (see Rule 15-1(16), which Affleck J. referred to) and fixed costs apart
from disbursements for both actions at $24,000.

[42]        
As is apparent from a review of all of the preceding decisions, none of
them are on all fours with the case at bar. None of the cases were two separate
actions, neither of which was made subject to Rule 15-1, ordered to be heard at
the same time and then settled globally for less than $100,000 prior to the
commencement of trial.

[43]        
In Harvey v. Tooshley, 2014 BCSC 433, Master Bouck, sitting as
registrar, considered an assessment of costs in two personal injury actions
governed by Rule 15-1, which were settled for a global figure, approximately
four days prior to the commencement of the trial. In that case, which involved
two Victoria registry actions, the plaintiff presented an appointment in each
action, but only one bill of costs; and that bill of costs claimed fees of
$6,500 for each of the actions and one set of disbursements.

[44]        
After reviewing the factual matrix, which included a settlement of
$100,000 new money in addition to about $19,000, mostly representing wage
replacement benefits, Master Bouck concluded as follows:

[29]      The defendants submit that there ought to be a
reduction in the fees claimed in each action to reflect the savings and
efficiencies achieved by having these matters joined for the purposes of trial.

[30]      It is now well established that the registrar has
some discretion to reduce the lump sum fee portion of costs allowed under Rule
15-1 if the action is settled before trial. That discretion is said to be a
"rough and ready" exercise and allows the registrar to consider the
steps been taken to the date of settlement. Nevertheless, the registrar is not
expected to parse out those steps as if the tariff to Appendix B applies.

[31]  The approach by assessing officers has been
to make some reduction for the costs that might be attributed to attendance at
trial and allow the balance as so-called preparation costs. Assessing officers
have allowed $6,500 for these preparation costs, whether the matter settled
three months before or on the eve of trial. The court has endorsed this approach:
Christen v. McKenzie, 2013 BCSC 1317.

[32]      Moreover, this approach is consistent with the
purpose of Rule 15-1 which is to provide a simplified and streamlined
litigation process, including the costs assessment process.

[33]      The plaintiff is entitled to two sets of costs,
regardless of the efficiencies accomplished by joining these actions for trial:
Peacock v. Battel, 2013 BCSC 1902.

[34]  I allow the sum
of $6,500 in fees for each action.

[45]        
In reaching my decision, I have considered the provisions of Appendix B
of the Civil Rules which deals with party and party costs. Section 7
reads as follows:

7          If 2 or more
proceedings have, by order, been tried at the same time or tried one after the
other and no order has been made as to apportionment of costs, the registrar
may

(a) assess 2 or more bills as one
bill,

(b) allow an item once or more than
once, or

(c) apportion the costs of an item or of the whole bill
between the proceedings.

DECISION

[46]        
After reviewing all of the authorities, I conclude as follows:

a)    The plaintiff is
entitled to one set of costs for each proceeding; and

b)    On assessment of
costs, a registrar or a master utilizing jurisdiction under Rule 14-1(15) can
apportion costs, for example, by allowing the full amount of $7,000 for one
proceeding and some lesser amount for the second proceeding.

[47]        
In paragraph 9 of her affidavit, Ms. Li-Seller deposes as follows:

9.         On May 9, 2014, Jesse
Kendall, an associate lawyer working with Mr. LeBlanc, delivered to me copies
of the Plaintiff’s Bills of Costs with respect to both actions. The Bills of
Costs were prepared in accordance with the Tariff set out in Appendix B of the Supreme
Court Civil Rules instead of in accordance with fast track costs set out in
Rule 15-1(15). Attached to this Affidavit and marked as Exhibit “E” is a
true copy of the Plaintiff’s Bill of Costs for Action No. M104255. Attached to
this Affidavit and marked as Exhibit “F” is a true copy of the
Plaintiff’s Bill of Costs for Action no. M110596.

[48]        
In Action No. M104255, the plaintiff claimed 80 units at $110.00 per
unit, or $8,800.00 in costs, plus taxes and disbursements. In Action No. M110595,
the plaintiff claimed 76 units or $8,360 in costs, plus taxes and
disbursements. From my review of these two bills of costs, and without having
heard submissions which undoubtedly would have resulted in some reduction of
claimed amounts (had the bills been assessed pursuant to Rule 14-1(1) as party
and party costs in accordance with Appendix B), I conclude that it is probable
that the two bills would have resulted in taxable costs exceeding $13,000.00. As
set out in para. 26 above, assessment of hypothetical bills is not what ought
to be done – the intent of the Rule is to avoid the necessity of a taxation

[49]        
These two cases settled for the combined amount of $65,000. Typical
contingency fee agreements provide for contingency fees of 25 percent to 33 1/3
percent. Although the fee arrangement between the plaintiff and her counsel is
privileged, based on other materials I have seen in other actions, it is highly
likely that by agreement the fees charged by the lawyer to the client were at
least $16,250.00 (25% of $65,000.00).

[50]        
In her applications, the plaintiff seeks special costs or in the
alternative costs of the application on Scale B of Appendix B. I was provided
with the decision of Mr. Justice Walker in Mayer v. Osborne Contracting Ltd.,
2011 BCSC 914, in which he discusses the circumstances in which special costs
will be ordered. Generally special costs are awarded where a litigant engaged
in reprehensible conduct. The purpose of an award of special costs is to
chastise the litigant. Special costs are punitive in nature and encompass an
element of deterrence.

[51]        
As is apparent, this case raises an important practice point that has
not previously been decided. It is not a case where special costs should be
ordered.

[52]        
After considering the facts deposed to, I conclude that no apportionment
is appropriate in these cases. I order that the plaintiff is entitled to $6,500
costs in each of the two actions, for a total of $13,000.00 costs, plus
applicable taxes and disbursements.

[53]        
In addition, the plaintiff is entitled to costs of this application
which I summarily assess pursuant to Rule 14-1(15) at $500 inclusive of taxes
and disbursements.

“Master
R.W. McDiarmid”

MASTER McDIARMID