IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150615

Docket: M63280

Registry:
Nanaimo

Between:

Darren Gaudreault

Plaintiff

And

Lloyd Gobeil and The
Driving Force Inc.

Defendants

Before:
The Honourable Mr. Justice Thompson

Oral Reasons for Judgment
In Chambers

[1]            
THE COURT: Following a six-day trial, I released reasons for
judgment on this motor vehicle accident damages assessment on March 31,
2015: Gaudreault v. Gobeil, 2015 BCSC 483. The award was as follows:

[2]            
The usual order in this sort of case is that the plaintiff is entitled
to his costs to be assessed on Scale B. The defendants submit that the
circumstances warrant departure from the usual order. I asked for and have
received written submissions in advance of the hearing today.

[3]            
The defendants seek an order apportioning costs pursuant to R. 14‑1(15).
They also call in aid R. 14‑1(14). These sub-rules read as follows:

(14)  If anything is done or omitted improperly or
unnecessarily, by or on behalf of a party, the court or a registrar may order

(a) that any
costs arising from or associated with any matter related to the act or omission
not be allowed to the party, or

(b) that the
party pay the costs incurred by any other party by reason of the act or
omission.

(15)  The court may award costs

(a) of a
proceeding,

(b) that
relate to some particular application, step or matter in or related to the
proceeding, or

(c) except so
far as they relate to some particular application, step or matter in or related
to the proceeding

and in awarding those costs the
court may fix the amount of costs, including the amount of disbursements.

[4]            
The plaintiff claimed approximately $325,000 for past loss of earning
capacity and the award was $30,000. The defendants submit that the plaintiff
should be denied his costs and the defendant should have their costs related to
the matter of this head of damages, citing British Columbia v. Worthington
Canada Inc. (1988), 29 B.C.L.R. (2d) 145 (C.A.), Sutherland v. Canada
(Attorney General), 2008 BCCA 27, and Lee v. Jarvie, 2013 BCCA 515. The
defendants submit that this is an appropriate case for apportionment of costs
because they succeeded on a separate and discrete issue (and partly on the
basis of findings that the plaintiff’s evidence was unreliable on some
important points), there is a basis on which the time attributable to the trial
of this separate issue can be identified, and apportionment would effect a just
result.

[5]            
A costs apportionment order is not a regular part of litigation and
should be confined to relatively rare cases: Sutherland at para. 7; Loft
v. Nat, 2014 BCCA 108 at para. 49. I am not persuaded that this is one of
the "relatively rare cases" that should result in the exercise of
discretion in such a way as to produce a costs apportionment order.

[6]            
 First, although the plaintiff did not succeed to the extent that he
would have hoped, he did secure an award for past loss of income earning capacity.
Second, some of the evidence that was called at trial in relation to this head
of damages was also relevant to the assessment of other heads of damages,
including loss of future earning capacity and non-pecuniary damages. So, while
assessment of the past loss was a separate issue in the sense of being a
separate head of damages, the evidence called that bore on that assessment
spilled over to other important parts of the case. I would not describe this
case being in the category where one issue "took a discrete amount of time
at trial" as Mr. Justice Goepel phrased it in the Nat case. The
time attributable to the trial of the issue of the past loss of capacity claim
could not be readily identified. Third, I am not convinced that apportionment
would effect a just result. The defendants seek an order that would largely
negate the plaintiff’s claim for costs in circumstances where the defendant
Gobeil’s negligence caused the plaintiff permanent partial disability that in
turn gave rise to a significant damages award —
an award that was more than the defendants had on offer before the
trial, albeit a fair measure short of what the plaintiff sought. While I found
that the plaintiff’s evidence was on some points unreliable, on some points
untruthful, and on some points exaggerated, this is not enough in my estimation
to properly ground the order sought by the defendants.

[7]            
I agree with the plaintiff’s submission that if the defendants were to
succeed on this application, it would follow that apportionment would be
appropriate in very many personal injury actions. This would run directly
contrary to persistent exhortations by the Court of Appeal to confine
apportionment orders to relatively rare cases.

[8]            
Ms. Cederberg said everything that could properly be said in
support of this application, but the defendants’ application is dismissed. The
plaintiff will have his costs of the action to be assessed on Scale B,
including his costs of this application.

[9]            
Anything arising, counsel?

[10]        
MS. CEDERBERG:  No, My Lord. Thank you.

[11]        
MR. de TURBERVILLE:  No, thank you, My Lord.

“Thompson J.”