IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Maras v. Seemore Entertainment Ltd., |
| 2014 BCSC 1842 |
Date: 20140930
Docket: S103330
Registry:
Vancouver
Between:
Marinko Stipan
Maras
Plaintiff
And
Seemore
Entertainment Ltd., Sea to Sky Hospitality Inc.,
Joseph Mario Ghattas, Constantino Stefanopoulos, Wayne Litz,
Maxwell Yip and Christopher Childs
Defendants
Before:
The Honourable Mr. Justice Abrioux
Reasons for Judgment Regarding Costs
Counsel for Plaintiff: | James Vilvang, Q.C. |
Counsel for Defendants: | Joseph Cahan |
Place and Date of Hearing: | Vancouver, B.C. August 22, 2014 |
Place and Date of Judgment: | Vancouver, B.C. September 30, 2014 |
Table of Contents
II: THE SCALE OF COSTS FOR THE
ACTION
IV: THE OFFERS TO SETTLE AND DOUBLE
COSTS
VI: THE ONEROUS NATURE OF THE COSTS
SOUGHT BY THE PLAINTIFF
I: INTRODUCTION
[1]
This action arose from an assault upon the plaintiff that occurred on
April 4, 2009 outside the Au Bar nightclub, located on Seymour Street in
Vancouver.
[2]
The plaintiff sustained serious injuries including a complicated mild
traumatic brain injury combined with orthopedic and psychiatric injuries.
[3]
The plaintiff was 20 years old at the time of the assault and 25 years
old when the action proceeded to trial before a jury for nine weeks commencing
April 7, 2014.
[4]
Both liability and the quantum of damages were in issue at trial and
vigorously contested by the parties.
[5]
On June 9, 2014, the jury delivered its verdict. Liability was found
against the corporate defendant owner of the nightclub and three of the
security personnel or bouncers. The action against one of the security staff
defendants, Mr. Yip, and the nightclubs manager, Mr. Childs, was dismissed.
The plaintiff was found not to be contributorily negligent.
[6]
The jury assessed damages as follows:
General | $ 250,000 |
Loss | $ 175,000 |
Future loss | $1,832,000 |
Cost of | $ 800,000 |
Special | $ 27,200 |
Total | $3,084,200 |
[7]
The plaintiff seeks the following orders:
(a) that his costs for the action be
assessed at Scale C;
(b) that he be entitled to costs of
two counsel for preparation and attendance at the trial;
(c) double costs of the action from
March 6, 2012 to its conclusion; and
(d) that no costs be awarded to the
defendants Yip and Childs or, alternatively, a Sanderson order with respect to
the payment of those costs.
II: THE SCALE OF COSTS FOR THE ACTION
[8]
The plaintiff seeks costs at Scale C. Sections 2(2) and 2(3) of
Appendix B of the BC Supreme Court Civil Rules (the Rules) provide:
2 (2) In fixing the scale of costs, the court must have
regard to the following principles:
(a) Scale A is for matters of
little or less than ordinary difficulty;
(b) Scale B is for matters of
ordinary difficulty;
(c) Scale C is for matters of more
than ordinary difficulty.
(3) In fixing the appropriate scale under which costs will be
assessed, the court may take into account the following:
(a) whether a difficult issue of
law, fact or construction is involved;
(b) whether an issue is of
importance to a class or body of persons, or is of general interest;
(c) whether the result of the proceeding effectively
determines the rights and obligations as between the parties beyond the relief
that was actually granted or denied.
[9]
Scale C is the merger of the former Scales 4 and 5 and is applicable to
matters of more than ordinary difficulty, including matters of unusual
difficulty or importance: Meghi v. British Columbia (Ministry of
Transportation and Highways), 2014 BCCA 105 at para. 138.
[10]
Although there is no definition of what constituted unusual difficulty
under the former scales, prior decisions do provide guidance and the trial
judge should, or is at least expected to, recognize such a case when he hears
and sees it. In addition, those observations are also apposite to the
formulation of what constitutes a matter of more than ordinary difficulty under
the new Rules: X. v. Y., 2012 BCSC 37 at paras. 20-21 citing Ter
Neuzen v. Korn, [1992] 64 B.C.L.R. (2d) 125 (S.C.) at 130-31).
[11]
Mort v. Saanich School District No. 63, 2001 BCSC 1473 at para 6
sets out various factors to be considered in determining the appropriate scale
of costs under the former scales. They include:
(a) the length of trial;
(b) the complexity of issues involved;
(c) the number and the complexity of pretrial 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.
See: Danicek v. Li, 2011
BCSC 444 at para. 40.
[12]
The overall difficulty of the matter is the governing factor in Appendix
B with the factors to be considered collectively. That some of the
considerations are neutral does not allow them to be set off against or
deducted from the factors that militate in favor of an order for costs on the
increased scale, if Scale C is justified on the basis of one or more of the
other factors: Slocan Forest Products Ltd. v. Trapper Enterprises Ltd.,
2010 BCSC 1494 at para. 23. See also, Moulton Contracting Ltd. v. British
Columbia, 2014 BCSC 993 at paras. 7-12.
[13]
The plaintiffs position is that this was a complex case. The trial
lasted 43 days. Forty-nine witnesses were called which included engineering,
soccer, and medical experts. There were two mistrial applications and several voir
dires. There were many pretrial applications and multiple examinations for
discovery. He submits this case was every bit as complex as Wallman v. Doe,
2014 BCSC 968 where costs at Scale C were awarded.
[14]
The defendants position is that Scale C costs are not justified simply
because the length of the trial was significant and there were a number of
expert reports produced. They say that the legal issues regarding liability and
damages were not complex nor were they of more than ordinary difficulty. The
matter did not involve novel scientific evidence or complex legislation. They further
submit that this case is more similar to Burnett v. Moir, 2012 BCSC 1286
and X. v. Y. where a request for costs at Scale C was denied.
[15]
As I noted above, a trial judge is expected to recognize a Scale C case
when he or she hears and sees it.
[16]
I was appointed the judicial management judge of this case in June 2012.
I have heard most, if not all, the pretrial motions since then. When I consider
the factors and principles to which I have referred, I conclude that costs at
Scale B, not Scale C, are appropriate. My reasons are as follows:
·
although the trial was lengthy and there were several pretrial
applications and many examinations for discovery, the issues were not of more
than ordinary difficulty;
·
the liability issues were primarily related to what occurred
during the evening of April 3 and the early morning hours of April 4, 2009.
While many non-expert witnesses were called to give evidence on this point,
their evidence was not complicated. With the exception of one witness, Mr.
Gerum, the collection and proof of facts in this case was not out of the
ordinary;
·
unlike Wallman v. Doe, the issue of whether the plaintiff
had, in fact, sustained a brain injury was not contested by the defence in this
case. In Wallman v. Doe, 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. In this
case, the defence conceded a complicated mild traumatic brain injury had been
sustained and the evidence, including the expert evidence, focused on the
extent of the injury on the plaintiffs ability to function in the past and in
the future. This evidence was not, in my view, of more than ordinary
difficulty;
·
I also do not consider the biomechanical engineering evidence to
have been complex particularly in light of the fact that there was no contrary
defence report; and finally
·
while the action was hard fought, the concession by the defence
that the plaintiff had sustained a complicated mild traumatic brain injury was
not unexpected. There was clear radiological imaging to this effect. It was
also conceded that the injury had and would have an effect on the plaintiffs
ability to function, although the extent of his disabilities were very much in
issue. That is not unusual in this type of case.
III: THE COSTS OF TWO COUNSEL
[17]
The plaintiff seeks an award of double units for the preparation and
attendance at trial on the basis that it was appropriate for him to be
represented by two counsel.
[18]
He submits that the trial was well-managed by counsel with few
interruptions. It was largely on schedule and proper use was made of Skype and
video conferencing. He relies on Wallman v. Doe where the plaintiff was
entitled to recover the costs of two counsel for the preparation for trial and
70% of the attendance of the second counsel at trial. The reduction was made in
that case due to the fact that the Court concluded two counsel were not required
100% of the time at trial and in particular during the lengthy video evidence.
[19]
Relying on Burnett v. Moir, the defence concedes that the
plaintiff should recover 1.5 of the units for counsels attendance at trial. The
defendants submit, however, that the plaintiff and the defendants each had a
single primary counsel conducting the action until a few months prior to trial
and, on that basis, that the plaintiff should not recover additional units for
preparation.
[20]
As was the case in Burnett v. Moir, this case certainly profited
at trial from the use of two counsel for the plaintiff as well as for the
defendants. But that is not to say that the defendants should be responsible
for the costs of two counsel for both preparation and attendance at trial.
[21]
When I consider what occurred in Wallman v. Doe, Burnett v. Moir, and
my own involvement in this case as a result of judicial case management, I
conclude that the plaintiff should receive his costs for preparation and
attendance at trial based on one and one-half counsel, but not two.
IV: THE OFFERS TO SETTLE AND DOUBLE COSTS
A: Introduction
[22]
The plaintiff made three formal offers to settle the action.
[23]
The first (Offer #1) was dated March 6, 2012. It was in the amount of
$1,800,000 plus assessed costs and disbursements in exchange for a consent
dismissal order on a without costs basis.
[24]
The second offer to settle (Offer #2) was dated April 3, 2012. It was
forwarded approximately two weeks before a 20 day trial was set to commence
with a jury on April 16, 2012. The trial did not proceed on that date. This
offer was also in the amount of $1,800,000 plus assessed costs and
disbursements payable by the defendant Seemore in exchange for a consent
dismissal order on a without costs basis. Upon payment, the plaintiff offered
to waive his claim for punitive damages and all claims against the other
parties.
[25]
Offer #2 was left open for acceptance for more than one year. It was
formally withdrawn on June 27, 2013.
[26]
The plaintiffs third offer to settle (Offer #3) was dated September
9, 2013. It was in the amount of $1,425,000 plus assessed costs and
disbursements. This was to include general and special damages, the in trust
claim being advanced by the plaintiff, the claim under the Health Care Costs
Recovery Act, S.B.C. 2008, c. 27, and interest. The plaintiff also offered
to waive his claim for punitive and exemplary damages if the offer was
accepted. Offer #3 was left open for acceptance for 10 days from September 9,
2013.
[27]
Accordingly, there were no offers to settle from the plaintiff that were
open for acceptance by the defendants immediately prior to the trial commencing
on April 7, 2014.
[28]
The defendants made one offer to settle. It was dated June 3, 2011 and
was on behalf of the defendants Parkwell, Au Bar, and Seemore. It was for the
sum of $20,000 inclusive of costs but not disbursements.
[29]
The defendants did not respond to any of the plaintiffs settlement
offers.
B: The Applicable Principles
[30]
Rule 9-1(4), (5) and (6) of the Rules provide, in part:
Offer may be considered in relation to costs
(4)The court may consider an offer to settle when exercising
the court’s discretion in relation to costs.
Cost options
(5)In a proceeding in which an offer to settle has been made,
the court may do one or more of the following:
(a) deprive a party of any or all of
the costs, including any or all of the disbursements, to which the party would
otherwise be entitled in respect of all or some of the steps taken in the
proceeding after the date of delivery or service of the offer to settle;
(b) award double costs of all or
some of the steps taken in the proceeding after the date of delivery or service
of the offer to settle;
(c) award to a party, in respect
of all or some of the steps taken in the proceeding after the date of delivery
or service of the offer to settle, costs to which the party would have been
entitled had the offer not been made[.]
Considerations of court
(6)In making an order under subrule (5), the court may
consider the following:
(a) whether the offer to settle
was one that ought reasonably to have been accepted, either on the date that
the offer to settle was delivered or served or on any later date;
(b) the relationship between the
terms of settlement offered and the final judgment of the court;
(c) the relative financial
circumstances of the parties;
(d) any other factor the court considers appropriate.
[31]
I recently reviewed the applicable principles in Bideci v. Neuhold,
2014 BCSC 1212 at paras. 38-40, 51-52:
(a)
the party seek[ing] to displace the usual rule [as to costs] has the
burden of persuading the judge that the rule should be displaced: Giles v.
Westminster Savings and Credit Union, 2010 BCCA 282 at para. 75, citing Grassi
v. WIC Radio Ltd., 2001 BCCA 376 at para. 24;
(b)
the overarching purpose of Rule 9-1 is to promote reasonable settlements
and to attach some consequences to the failure of a party to accept a reasonable
settlement: Brewster v. Li, 2014 BCSC 463 at paras. 15-16;
(c)
the present Rules provide the court with considerable discretion
to define and fix an appropriate cost award: Brewster v. Li at para. 14,
citing Bailey v. Jang, 2008 BCSC 1372 at paras. 10, 18. The presumption
under Rule 14-1(9) that a successful party is entitled to his costs is subject
to the broad purpose of Rule 9-1 and the opportunity for judicial discretion
under Rule 9-1(4) in that the court may consider an offer to settle
when exercising its discretion in relation to costs. Rule 9-1(5) enumerates the
orders the court may make. In making an order under subrule (5), the
court may consider the factors listed in subrule (6): Wafler v.
Trinh, 2014 BCCA 95 at para. 79 [emphasis in the original];
(d)
unlike under the former Rule 37, it is not mandated under Rule 9-1 that
a plaintiff who rejects a reasonable offer should face some sort of sanction.
Rather, [t]he permissive wording in Rules 9-1(5) and (6) indicates the
legislature intended to preserve the historically discretionary nature of costs
awards, including an award of costs where an offer to settle has been made:
Wafler v. Trinh at para. 82 [emphasis added in Bideci v. Neuhold];
(e)
in addition to indemnifying a successful litigant, the purposes for
which cost rules exist were articulated by Frankel J.A. for the court in Giles
v. Westminster at para.74 and include:
· deterring
frivolous actions or defences: Houweling Nurseries Ltd. v. Fisons Western
Corp. (1988), 37 B.C.L.R. (2d) 2 at 25 (C.A.), leave to appeal to the
S.C.C. refused, [1988] 1. S.C.R. ix;
· to
encourage conduct that reduces the duration and expense of litigation and to
discourage conduct that has the opposite effect: Skidmore v. Blackmore,
[1995] 2 B.C.L.R. (3d) 201 at 208 (C.A.);
· encouraging
litigants to settle whenever possible, thus freeing up judicial resources for
other cases: Bedwell v. McGill, 2008 BCCA 526 at para. 33; and
· to
have a winnowing function in the litigation process by requir[ing] litigants
to make a careful assessment of the strength or lack thereof of their cases at
the commencement and throughout the course of the litigation, and by
discourag[ing] the continuance of doubtful cases or defences: Catalyst
Paper Corporation v. Companhia de Navegação
Norsul, 2009 BCCA 16
at para.16.
[32]
The proposition that a plaintiff who rejects a reasonable offer should face
some form of sanction applies equally to defendants.
C: The Parties Positions
[33]
The plaintiff argues that this is a classic case for double costs
because Offers #1, #2 and #3 ought all to have been accepted. Although Offer #3
in the amount of $1.425 million was only open for acceptance for10 days in
September 2013, Offer #2 for $1.8 million was left open for acceptance for in
excess of one year, being the period of April 3, 2012 to June 27, 2013. The Rules
do not provide that any offer must be left open until the eve of the trial.
[34]
The plaintiff submits that during his examination for discovery on
August 23, 2011, he referred to the independent eyewitness witness Jamel
Caines-Walker and what he understood his evidence would be as to how the
assault had occurred. Mr. Caines-Walker had also spoken to an investigator
retained by the defence in November 2011 and provided answers to questions at
that time.
[35]
The plaintiff argues that it should have been clear to the defendants
during the timeframe that each of the offers was open for acceptance that they
faced a significant risk in not accepting the offers and proceeding to trial. The
defendants, however, made no counter offers and apparently took the position
that they had little or no risk. Defendants are presumed to know that the
potential consequences for not accepting an offer to settle will be an award of
double costs against [them]: Hutson v. Michaels of Canada, ULC, 2009
BCSC 1587 at para. 14.
[36]
The defendants present a number of arguments against increased cost
consequences. They argue that if costs are to have double costs consequences,
the normal practice is for the offer to be left open until immediately prior
to trial.
[37]
The defendants say that liability was vigorously opposed based on the
contents of the police file as well as the personal defendants adamant denial
of any involvement in the incident. They submit that the plaintiff, through one
of his counsel, effectively blocked the defendants access to liability
witnesses, in particular Mr. Caines-Walker and Ms. Frigon, until shortly before
the trial.
[38]
The defendants argue that there were approximately 8 to 10 hours of
examination for discovery after Offer #3 expired. The defendant Ghattas was
examined on two occasions with the defendants Stefanopoulos, Yip, and Childs
being each examined on one occasion after this offer expired. What these
defendants were going to testify to under oath was not known in its entirety at
the time that Offer #3 was open for acceptance. Accordingly, it was not an
offer that ought reasonably to have been accepted.
[39]
Although the defendants agree that they had significant exposure on
damages, the most complex issue was the plaintiffs ability to function. Certain
of the reports that dealt with this issue were not received or obtained until
after Offer #3 had expired.
[40]
The defendants also rely on the fact that the plaintiffs biomechanical
engineering report was not served until January 2014 and that the court-ordered
discount rate pertaining to loss of earning capacity and cost of future care
was changed during the course of the trial. This added approximately $1 million
to the defendants maximum exposure.
D: Discussion
[41]
The first consideration under Rule 9-1(6) is whether any of the formal offers
were ones that ought reasonably to have been accepted by the defendants.
[42]
This question is not to be addressed with the benefit of hindsight, that
is, with the knowledge of the award that was ultimately made: Bailey v. Jang,
2008 BCSC 1372 at para. 24; A.E. v. D.W.J., 2009 BCSC 505 at para. 55,
affd 2011 BCCA 279 (sub nom. Evans v. Jensen); Hartshorne v.
Hartshorne, 2011 BCCA 29 at para. 27.
[43]
A factor that may be taken into account is whether the offer was well
within the range of outcomes that could reasonably have been expected: Hartshorne
v. Hartshorne at para. 27, citing A.E. v. D.W.J. at para. 55; Brewster
v. Li at para. 22.
[44]
It is clear that liability was a principal focus of this proceeding. In
addition, although the defendants accepted that the plaintiff had sustained a
mild complicated traumatic brain injury, the extent to which this had and would
affect his ability to function was in issue. At trial, the plaintiff sought several
million dollars in damages, not including general damages for pain and
suffering.
[45]
When I apply the principles to which I have referred to the
circumstances that existed as at the time Offers #1 and #2 were made, I
conclude they were not offers that ought reasonably to have been accepted by
the defendants to whom they were addressed. I reach the same conclusion with
respect to Offer #3.
[46]
My reasons include that:
·
the examinations for discovery of all the defendants were not
completed until the fall of 2013;
·
the garnering of medical and other evidence by both the plaintiff
and the defendants, but particularly the defendants, pertaining to the
plaintiffs injuries and the effect on his functioning was ongoing after Offer
#3 expired;
·
the plaintiffs biomechanical engineering expert report
pertaining to the forces required to cause the plaintiffs injuries was not
served on the defendants until January 2014; and
·
the change to the court-ordered discount rate came into effect as
of April 30, 2014, after the commencement of the trial and after the
plaintiffs economist had testified. Mr. Carson prepared revised reports that increased
the defendants maximum exposure for damages for loss of earning capacity and
cost of future care by almost $1 million. He was also recalled to give evidence
with respect to his revised reports dealing with this issue.
[47]
And yet, when I consider the other applicable factors in Rule 91(6), particularly
(b), I am of the view that there should be significant cost consequences to the
unsuccessful defendants in deciding to take this proceeding to a lengthy jury
trial. I reach this conclusion because:
(a) by mid-January 2014 at the
latest, the defendants were well aware of the risks they were assuming in
taking this action to trial;
(b) while offers to settle are
often left open for acceptance up to the eve of trial, it is not a prerequisite
to the courts exercise of discretion on costs that this occur;
(c) insofar as liability was
concerned, by mid-January 2014, all examinations for discovery had been
completed and the individual defendants denial of any involvement had been
tested under oath. In addition, the plaintiffs biomechanical engineering
report had been received. The defendants chose not to serve any engineering report
in response;
(d) I do not accept the defendants
submission that the conduct of the plaintiffs counsel impeded their ability to
access Mr. Caines-Walker and Ms. Frigon, the two independent witnesses to the
incident. In August 2012, the defendants brought an application to examine
these two witnesses under oath. This application was dismissed by Master Scarth
with liberty to re-apply. The basis of this order was that a list of written
questions had been provided by defence counsel to be answered by Mr.
Caines-Walker and Ms. Frigon and if counsel were not satisfied with the
responses received then there was liberty to reapply to examine these potential
witnesses under oath. Defence counsel was satisfied with the answers received
and an examination under oath was not pursued;
(e) as for the defendants exposure
on damages, they knew or should have been well aware by mid-January 2014 as to
the potential magnitude of the claim. The defence experts were in agreement
that the plaintiff had sustained a complicated mild traumatic brain injury.
There was an issue as to whether cognitive behavioral therapy had been
undertaken by the plaintiff and, if not, the extent to which that therapy could
assist him in the future. However, there was no real dispute that the
plaintiffs functioning had been seriously compromised by the injuries that he
had sustained. He was a young man in his 20s. There was a serious claim
advanced as to the loss of a potential professional soccer career. The evidence
led on the plaintiffs behalf that his future employability would likely be
restricted to a sheltered environment was not seriously tested by the
defendants experts;
(f) the plaintiff made three attempts
to settle his claims;
(g) the only offer made by the
defendants prior to the trial commencing in April 2014 was the June 2011 offer
for $20,000 plus disbursements; and
(h) notwithstanding this set of
circumstances, the defendants, as counsel candidly admitted during submissions,
made the decision, which was their right, to take the case to trial and let
the jury decide.
[48]
After a lengthy trial, the jury indeed decided. The plaintiff was
successful on liability without any contributory negligence being found on his
part. He was awarded damages of approximately $3.1 million. Even taking into
account the potential effect of the change to the court-ordered discount rate,
this was well above the amounts in Offers #1, #2 and #3 and bore no resemblance
to the defendants only offer to settle made three years earlier.
[49]
The defendants chose not to respond to Offers #1, #2 or #3 or to otherwise
engage the plaintiff in settlement negotiations at any time and, in particular,
after mid-January 2014. Rather, they proceeded to what they knew would be a
prolonged trial. I consider the appropriate costs consequence for the
unsuccessful defendants is that the plaintiff should recover costs at 1.5 of
the unit amounts for the preparation and attendance at the trial as of January
15, 2014.
V: SANDERSON ORDER
[50]
The case was dismissed against the defendants Childs and Yip.
[51]
The plaintiff seeks an order that these defendants not recover any
costs. In the alternative, he seeks an order that the costs of the defendants
Childs and Yip be paid directly to them by the unsuccessful defendants, by way
of a Sanderson order.
[52]
Rule 14-1(9) provides that the court has the discretion to deny a party
his costs. Under Rule 14-1(18) the court has the discretion to order that the
costs of one defendant be paid by another defendant.
[53]
The principles that apply to a Sanderson order include:
·
the plaintiff bears the onus of justifying a departure from the
usual rule that costs follow the event: 0915406 B.C. Ltd. v. 0834618 B.C.
Ltd., 2013 BCSC 1529 at para. 15;
·
the test is whether it was reasonable for the plaintiff to sue
the successful defendant together with the unsuccessful defendant. There must
be something that the unsuccessful defendant did to warrant being made to
reimburse the plaintiff for the successful defendants costs: Grassi v. WIC
Radio Ltd. Once the threshold question is answered affirmatively then the
granting of a Sanderson order becomes an exercise of judicial discretion in
determining what is just and fair in the circumstances: Robertson v. North
Island College Technical and Vocational Institute and Wing, [1981] 26 BCLR
225 at 228 (C.A.); Brown v. Lowe, 2002 BCCA 7 at paras. 129-130;
·
a Sanderson order can be granted when there is a close legal
relationship between a successful and unsuccessful defendant but it is not
required that there be some unusual circumstances; Brown v. Lowe at paras.
131-132;
·
when exercising its discretion, the court may consider whether it
was appropriate for a plaintiff to maintain his or her action against the successful
defendant when it becomes apparent during the course of litigation that the
claims against that party have no reasonable prospect of success: Lee (Guardian
of) v. Richmond Hospital Society, 2002 BCSC 862 at para. 58, revd on other
grounds 2005 BCCA 107;
·
a successful defendant will not be entitled to costs if the
unsuccessful and successful defendants are represented by the same counsel and
no separate steps were taken on behalf of the successful defendant that
resulted in additional legal costs: St. George Transportation Ltd. v.
Sawicky, 2004 BCSC 1488 at para. 4; and
·
in cases where counsel take separate steps on behalf of the
successful defendant, it may be appropriate to limit costs awarded to the
portion of the trial solely related to claims against the successful defendant:
Lam v. Chiu, 2013 BCSC 1281 at para. 100; Antrobus v. Antrobus,
2012 BCSC 613 at paras. 21-25.
[54]
The plaintiff submits that there was a close legal relationship between
Mr. Childs and Mr. Yip with the corporate defendant Seemore. Seemore was found
liable. All of the personal defendants took the position that they either knew
nothing about what had occurred or that the plaintiff was the author of his own
misfortune in that he had tripped over the umbrella stand of the hot dog cart.
By their evidence, they attempted not only to exonerate themselves but also their
co-defendants.
[55]
The defendants submit that it was unnecessary and unreasonable for the
plaintiff to name Mr. Childs as a defendant since his employer was already
named. In addition, he could have been examined without being named as a
defendant in the action in his capacity as an employee of the defendant
Seemore.
[56]
In so far as Mr. Yip is concerned, the defendants say that he was not
present at the time of the incident. He was working as a member of the security
staff inside the nightclub. The plaintiff should have sought the dismissal of
the proceedings against Mr. Yip when it became clear that there was no credible
evidence to continue to name him as a defendant. Relevant information possessed
by him could be attained by calling him as a witness rather than by naming him
as the defendant.
[57]
I accept the plaintiffs submission that it was appropriate for him to
name Mr. Childs and Mr. Yip as defendants and, after examinations for
discovery, not to seek to have the proceedings against them dismissed or
discontinued.
[58]
Although he was positioned inside the nightclub, Mr. Yips station was
visible from the entrance where the jury found the assault to have occurred. In
so far as Mr. Childs was concerned, he had been the manager of the
nightclub for some time prior to the incident. He had authored the policy
procedures manual. Mr. Ghattas who was head of security reported directly to
him. The claims advanced by the plaintiff included the failure to have adequate
procedures in place and that Mr. Childs had not exercised his responsibilities
appropriately.
[59]
I do not see the continuation of the proceedings against Mr. Yip and Mr.
Childs after examinations for discovery as being the case of the plaintiff
stubbornly pursuing a claim of doubtful merit. Although made within the context
of a claim for double costs, what was stated by Cullen A.C.J. in Burnett v.
Moir at para. 53 applies in my consideration of this issue:
The line between the dogged
pursuit of a very dubious claim and the determined exploration of a legitimate
but ultimately unsuccessful theory of liability is not always clear-cut. The
Court, however, must be careful not to too readily assume the former making
costs awards which would deter the latter. In this case, while clearly the
plaintiff faced the prospect of failure, I am not prepared to conclude that the
merit of his claim was such that it should factor into a consideration of
double costs.
[60]
The defendants position appears to be that the successful defendants should
be entitled, at a minimum, to their costs after examinations for discovery were
concluded in the fall of 2013. But they have not pointed to any additional
steps taken on their behalf which have amounted to additional costs since that
time.
[61]
In addition, the plaintiff did discontinue the action against the
defendant Paul Blackwell in April 2012. This indicates that he was not prepared
to pursue claims that he viewed as having no reasonable likelihood of success.
[62]
Accordingly, based on the Sanderson order principles and the
circumstances of this case, I conclude that such an order is appropriate with
respect to the costs of the defendants, Childs and Yip.
VI: THE ONEROUS NATURE OF THE COSTS SOUGHT BY THE
PLAINTIFF
[63]
The plaintiffs draft bill of costs as presented is $460,800.
[64]
The unsuccessful defendants submit that awarding all of the costs relief
sought in the plaintiffs notice of application will result in unduly onerous
costs consequences to them.
[65]
They rely on Burnett v. Moir as authority for this proposition. In
that case, however, the defendants conceded that a costs award based on the
submissions made would result in an excessive amount being paid by the
seriously impaired plaintiff. Had such an award been made, it would have
significantly impacted the funds he would have available to him for his future
needs: para. 36.
[66]
There is nothing in the record before me on this application that could
lead to a similar conclusion. In addition, the defendants have been successful
on certain of the costs issues.
VII: CONCLUSION
[67]
The unsuccessful defendants are ordered to pay costs at Scale B on the
basis of one and one half counsel for preparation and attendance at trial.
[68]
The plaintiff is also entitled to one and one-half costs from January
15, 2014 to the conclusion of the trial.
[69]
The costs of the successful defendants, Childs and Yip, shall be paid
directly by the unsuccessful defendants Seymour, Ghattas, Stefanopoulos, and
Litz by way of a Sanderson order.
[70]
There has been divided success on this application although the
plaintiff, in my view, has achieved greater success than the defendants. He
shall receive two thirds of his costs of this application at Scale B.
[71]
The plaintiff also seeks judgment against the defendants for tax gross-up
and management fees.
[72]
This application was heard on August 22, 2014. Counsel for the plaintiff
had obtained a report from the economist Mr. Robert Carson pertaining to the
tax gross-up issue. Counsel for the defendants obtained a report from Mr. Mark
Szekely in response but it could only be provided to the plaintiff that day.
Submissions on this issue were not completed and so it was adjourned generally.
[73]
The difference between Mr. Carsons opinion and Mr. Szekelys is
approximately $50,000. It may well be that counsel will be able to resolve this
issue once Mr. Carson has reviewed Mr. Szekelys report. Should that not occur,
the parties have leave to reset that issue for hearing before me.
Abrioux
J.