N THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150825

Docket: M108219

Registry:
New Westminster

Between:

David Cameron
Biggs

Plaintiff

And

John Doe, Richard Roe, and Insurance
Corporation of British Columbia

Defendants

Before:
The Honourable Mr. Justice Bernard

Reasons for Judgment re: Costs

A.       Overview

[1]            
On April 30, 2006, David Biggs was injured in a motor vehicle collision.
He subsequently sued the defendants for damages. The trial spanned 12 days, and
on April 22, 2014, Mr. Biggs’ claim was dismissed: see Biggs v. Doe,
2014 BCSC 685.

[2]            
The defendant Insurance Corporation of British Columbia (“ICBC”) now
seeks its costs, as the wholly successful party. ICBC submits it has a valid
argument for an order of double costs arising from two pre-trial settlement
offers, but is content with an award of ordinary costs, at Scale B.

[3]            
The plaintiff’s position is that special circumstances exist which
justify the court departing from the general rule that costs are awarded to the
successful party. These circumstances are, primarily, that ICBC opposed the
plaintiff’s request to sever the liability and damages issues. The plaintiff
argues that the result was a trial that ran an estimated seven days longer than
necessary. The plaintiff says ICBC ought to be deprived of its costs entirely
or, alternatively, that the award should be restricted to five trial days.

[4]            
Notably, on September 12, 2008, the plaintiff sought court-ordered
severance and was unsuccessful.

[5]            
For the reasons which follow, I conclude that ICBC, as the successful
party, is entitled to its costs, at Scale B.

B.       Background

[6]            
Mr. Biggs sustained serious physical injuries in a high-speed
collision between his motorcycle and the pup trailer of a dump truck. There was
never any suggestion that the truck driver was at fault, but in September 2006
some information came to Mr. Biggs’ attention that led him to believe that
the collision may have been caused by the driver of another motor vehicle
“rear-ending” his motorcycle shortly before the collision with the pup trailer.
Unfortunately, Mr. Biggs was never able to determine the identity of this
driver or the witness who allegedly saw Mr. Biggs rear-ended; thus, proof
of liability remained very much in issue in Mr. Biggs’ lawsuit against the
defendants.

[7]            
On September 12, 2008, Mr. Biggs applied to sever the issue of
liability from damages. This application was successfully opposed by ICBC: see Biggs
v. ICBC, 2008 BCSC 1343. In denying the application the chambers judge stated
the following:

[16]      Even if a case need not be exceptional to support
an order for severance, it must disclose some compelling reason for such an
order. Compelling reasons must arise from the circumstances of the particular
case. Although I have considerable sympathy for Mr. Biggs’ personal
situation, I find no compelling reason for separate trials of liability and
damages. Difficult though Mr. Biggs’ personal circumstances undoubtedly
are, I am not persuaded that, in the context of the   litigation as whole, they
support a departure from the general practice by which all issues are
determined in a single trial.

[8]            
On August 12, 2010, ICBC offered to settle the action for $25,000, with Mr. Biggs
entitled to his costs of the action at Scale B and necessary and reasonable
disbursements to the date of delivery of the offer, and ICBC entitled to its
costs of the action at Scale B and necessary and reasonable disbursements from
the date of delivery of the offer. The offer expired at 4:00 p.m. on the last
business day before the trial commenced. An earlier similarly-worded offer of
$1,000 was made on December 5, 2007.

[9]            
The trial commenced on August 23, 2010. ICBC was the only participating
defendant; the identities of the defendants Doe and Roe were never determined.
The trial did not conclude within the nine days allotted; ICBC’s accident
reconstruction expert had yet to testify. In the hiatus, Mr. Biggs
retained new counsel who indicated his intention to apply to reopen the
plaintiff’s case for the purpose of tendering additional evidence in relation
to damages. ICBC made it clear that it would strenuously oppose such an
application. Eventually, the parties resolved the matter by agreeing to sever
the damages issue; thus, the trial on liability continued on June 5, 6 and 7,
2013. This was a sensible agreement because liability remained very much in
issue as a result of Mr. Biggs’ inability to locate his key eye-witness.

[10]        
In relation to proof of liability, Mr. Biggs’ case ultimately
relied heavily upon the admission of hearsay evidence for its truth, pursuant
to the principled exception to the rule against hearsay. This evidence was an
out-of-court statement attributed to an unknown woman at the scene who spoke
briefly to an attending volunteer member of the Hope Search and Rescue Team and
then departed without speaking to the police or identifying herself to anyone. Mr. Biggs’
counsel valiantly argued in favour of admissibility of this hearsay evidence,
but it was ultimately ruled inadmissible for its failure to meet threshold
reliability.

[11]        
On April 22, 2014, the plaintiff’s case was dismissed for failure to
prove liability.

C.       Legal Principles

[12]        
It is common ground that ICBC was the successful party at trial, and
that there should only be a departure from the general rule that the successful
party shall have its costs if special circumstances justify it.

[13]        
The applicable rule in the Supreme Court Civil Rules provides as
follows:

Costs to follow event

14-1(9) Subject to subrule (12), costs of a proceeding must
be awarded to the successful party unless the court otherwise orders.

(The exception referred to in Rule
14-1(12) relates to the costs of pre-trial applications and has no bearing on
the instant costs claim.)

[14]        
The discretion to depart from the general rule must be exercised
judicially on a principled basis, and must be connected to the conduct of a
party to the litigation in relation to the case or leading up to the
litigation. Financial and personal circumstances, standing alone, are
insufficient to overcome the general rule that costs follow the event: see Morris
v. Doe, 2011 BCSC 1053.

D.       Discussion

ICBC’s Opposition to Severance

[15]        
The impugned conduct of the defendant ICBC is its opposition to the
plaintiff’s proposal that liability and damages be severed to permit the
controversial question of liability to be decided before Mr. Biggs
incurred considerable costs in furtherance of proving the extensive losses
arising from his injuries. In this regard, the plaintiff submits:

. . . The defendants insisted that the issues be heard
together and for no clear reason. As a result, the costs of litigation were
unnecessarily increased to prepare and present evidence in slices over the
course of three years.

. . . This case cried out for the issue of liability to be
decided first. It is submitted that ICBC took the position that both aspects of
the trial should proceed together in order to increase the plaintiff’s
litigation costs by requiring him to obtain a number of expert witnesses to
prove damages for a catastrophic injury . . .

Subsequently, ICBC reversed itself, and agreed to separate
the issues of liability and damages, but only after significant costs were
incurred.

[16]        
The foregoing submission is somewhat misleading, in several respects. First,
it suggests that severance was precluded simply by ICBC’s insistence that the
issues be tried together, when the issue was, in fact, judicially determined
upon application by the plaintiff. ICBC was, of course, entitled to oppose the
application and cannot be criticized for doing so. Severance was not foreclosed
merely by ICBC’s opposition to it. It was open to Mr. Biggs to satisfy the
court that severance was appropriate, but it is clear that he was unable to do
so.

[17]        
It is noteworthy that the September 2008 severance application was,
according to the court’s reasons for judgment, made when the “action was at an
early stage” and was based upon Mr. Biggs’ “interest in resolving the
disputed question of liability as quickly as possible, because of his difficult
personal circumstances while this matter remains uncertain”. It is apparent
that Mr. Biggs’ argument was not based upon the potential difficulty he
faced in proving liability as a result of an inability to locate a key witness,
and the merits of not incurring considerable, and possibly needless, expense to
prove damages. In her summary of the law, the chambers judge recognized this as
a basis upon which severance may be justified; it was, however, not the ground
advanced by the plaintiff.

[18]        
In the almost two years that elapsed between the September 2008
severance application and the August 2010 trial, Mr. Biggs’ key liability
witness was not located. In this period, it was open to Mr. Biggs to make
another severance application based upon this new and different concern, but he
did not do so.

[19]        
In relation to ICBC’s subsequent mid-trial agreement to sever liability,
the submission of Mr. Biggs is, again, misleading. The agreement was the
result of an ICBC concession at a time when Mr. Biggs was making a
strenuously opposed application to reopen his case to tender further evidence
on the issue of damages. The application threatened to further delay the
continuation of the trial, and the agreement of counsel was a practical
solution that recognized the realities known at the time. ICBC’s firm
opposition to Mr. Biggs’ application to re-open his case could not be said
to be unreasonable, in all the circumstances; moreover, it had become apparent
at the trial, if it was not so before, that proof of liability rested substantially
upon the hearsay evidence of the unknown eyewitness, the admissibility of which
remained very much in contention.

[20]        
Having regard to the foregoing, I am not persuaded that ICBC’s
opposition to severance is a special circumstance justifying departure from the
general rule that successful parties are entitled to their costs.

Plaintiff’s Financial Circumstances

[21]        
Mr. Biggs suggests that his present modest financial means ought to
be considered as a special circumstance.

[22]        
Prior to his injury, Mr. Biggs was a foster parent for difficult
teens. In this capacity, he was a high income earner ($11,700 per month,
tax-free), and the owner of significant assets, including a home, half-ownership
in a recreational property, motor vehicles, a boat, and recreational equipment.
At the time of trial, Mr. Biggs had managed to maintain his contract with
the Provincial government with help from his wife and brother; however, in Mr. Biggs’
later submissions on costs, he reported that: (a) his government contract was
terminated in June 2014; (b) he was forced to resign from a car salesman
position he took after he lost his government contract; and, (c) a sale of his
recreational property was hampered by his property partner. He also reported
that he had significant expenses arising from his need for a prosthetic lower
leg, and that his “Part 7” fund was near exhaustion.

[23]        
In his submissions, Mr. Biggs does not explain the relevance of his
declining financial picture, as unfortunate as it may be, to the costs issue. It
is undoubtedly the case that the defendant ICBC has deeper pockets, but the law
is clear: sympathy for the unsuccessful party’s personal circumstances and the
deeper pockets of the successful party are not, without more, a basis for
departing from the general rule that successful parties are entitled to their
costs. The court’s discretion must: (a) be exercised judicially; (b) rest on
principle; and, (c) be linked to the conduct (or misconduct) of the successful
party. I am not persuaded that Mr. Biggs’ has shown that his financial and
personal circumstances justify a departure from the general rule.

D.       Disposition

[24]        
The defendant ICBC is entitled to its costs of the action, including its
submissions on the costs issue, at Scale B.

“The
Honourable Mr. Justice Bernard”