IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151117

Docket: M140863

Registry:
New Westminster

Between:

Tajinder Singh
Brach

Plaintiff

And

Joan Leanne Letwin,
Sukhdev S. Pattar and Davinder S. Pattar

Defendants

-AND-

Docket: M136478

Registry:
New Westminster

And

Tajinder Singh
Brach

Plaintiff

And

Mandeep Singh
Mangat and Gurbachan Singh Singara

Defendants

And

Insurance
Corporation of British Columbia

Third
Party

Before:
The Honourable Mr. Justice Williams

Costs Ruling

INTRODUCTION

[1]           
These reasons concern costs in respect of two actions brought by the
plaintiff for injuries arising from two separate motor vehicle accidents.

[2]           
The first accident occurred on the Alex Fraser Bridge on November 21,
2010 (the “First Accident”). The plaintiff brought an action against the
defendants Mandeep Singh Mangat and Gubachan Singh Singara (the “Defendants”)
in which liability and damages were both contested (the “First Action”). ICBC
was joined as a third party in this action (the “Third Party”).

[3]           
The second accident occurred on September 15, 2011 (the “Second
Accident”). Liability was admitted and only damages were in issue in the action
brought by the plaintiff (the “Second Action”).

[4]           
On February 8, 2013, Mr. Justice Crawford ordered the two actions be
heard at the same time.

[5]           
The trial was heard by jury and spanned fifteen days, excluding jury
deliberations.

[6]           
At trial the plaintiff sought $200,000 in past income loss, $11,365.29
in past special damages, $34,069 for the cost of future care, $1,145,000 for
loss of future income and an unspecified amount of non-pecuniary damages.

[7]           
The jury dismissed the plaintiff’s claim in the First Action. With
respect to the Second Action, the jury awarded $35,100 in non-pecuniary
damages, $10,000 in past income loss, $3,000 in past special damages, and
$2,000 in damages for future care. The jury made no award for loss of future
income.

THE POSITIONS OF THE PARTIES

[8]           
The parties’ submissions on costs arising from the First Action and the
Second Action are intertwined.

[9]           
The plaintiff submits that the bulk of the trial concerned the
plaintiff’s credibility and the nature of his injuries. He says that he has
been successful in both respects and costs in the First Action should be
apportioned between the parties as a result. In his submission, costs to the
Defendants and the Third Party arising from the First Action should be limited
to three days of trial: two days for evidence on liability, and one day for submissions.

[10]       
The plaintiff further submits that the disbursements to be recovered by
the Defendants and Third Party in the First Action should be limited to their
engineering fees and expenses, and the cost of one discovery of the plaintiff.
The plaintiff contends this is appropriate because he says the attack on his
credibility made by the Defendants and Third Party, particularly through the
use of surveillance footage, was unsuccessful, as evidenced by the jury’s award
of damages in the Second Action. He seeks a ruling that none of the
surveillance activity and investigatory charges or expenses are recoverable
disbursements.

[11]       
In these circumstances, the plaintiff seeks an order of the Court fixing
the Defendants’ and Third Party’s costs in the First Action at $11,000 plus
engineering disbursements, pursuant to R. 15-1(15) of the Supreme Court
Civil Rules, BC Reg 168/2009.

[12]       
The Defendants and Third Party in the First Action submit that as the
successful parties in the First Action they are entitled to all their costs and
disbursements pursuant to R. 14-1(9). They submit there are no special
circumstances in the First Action that would warrant departure from the general
rule of R. 14-1(9):

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

[13]       
Specifically, they submit that apportionment does not arise with respect
to costs of the First Action.

[14]       
As for the Second Action, the plaintiff seeks costs with a total tariff
entitlement fixed at $21,500 plus recoverable disbursements including all
expert medical reports and attendance fees. This amount is reached by the
plaintiff attributing ten trial days to the Second Action and calculating fixed
costs in accordance with R. 15-1(15), but allowing for $1,500 per day above the
$11,000 of R. 15-1(15)(c).

[15]       
The defence submits there is no reason to depart from the $11,000 fixed
costs under R. 15-1(15)(c).

[16]       
The defence also submits that in the circumstances, it is appropriate to
apportion costs of the Second Action on account of divided success between the
parties with respect to distinct issues. Specifically, the defence says the
plaintiff’s claim for future loss of income was dismissed, and so costs and
disbursements relating to the trial days spent on this issue should be
apportioned in favour of the defence. Alternatively, the defence submits that
the plaintiff’s costs and disbursements (in particular related to expert
evidence) associated with the time spent on this issue should be disallowed.

[17]       
The plaintiff takes the position that the defence in the Second Action
was not successful on the issue of loss of future income as that head of
damages was never pursued by the plaintiff in the Second Action, and was only
raised at trial with respect to the First Action. Therefore, the plaintiff says
apportionment is not appropriate in the Second Action.

[18]       
Finally, the parties disagree as to the amount by which the plaintiff’s
damages in the Second Action should be reduced by virtue of s. 83(5) of the Insurance
(Vehicle) Act, R.S.B.C. 1996, c. 231.

ISSUES

[19]       
The following issues arise:

1.    Should there be
an order apportioning costs? If so, what is the appropriate apportionment?

2.    Should the Court
order limited recovery of disbursements? If so, to what extent?

3.    Should an award
of special costs against the plaintiff be made on account of the expert reports
and testimony of Mr. McNeil?

4.   
What is the appropriate deduction to be made to the plaintiff’s damages
award in the Second Action on account of s. 83(5) of the Insurance (Vehicle)
Act, R.S.B.C. 1996, c. 231?

DISCUSSION

[20]       
A determination of how many days of trial dealt with matters arising in
the First Action, and how many dealt with matters arising in the Second Action,
is relevant to all the above issues. I will deal with this in my discussion of
the first issue listed above.

Should there be an order apportioning costs? If so, what
is the appropriate apportionment?

[21]       
In the First Action both liability and damages were at issue. The
Defendants and Third Party brought evidence to contest liability and, in the
event liability was established, to contest any resultant damages. The
plaintiff’s claim in the First Action was dismissed.

[22]       
Notwithstanding that, the plaintiff seeks to apportion costs of the
First Action on account of issues where he says he was successful. He puts it
as follows in his submissions:

The liability dismissal of his
Alex Fraser Bridge collision claim should not leave the Plaintiff with the
obligation to pay for disbursements that relate to an issue upon which he was
successful; that being the nature and degree of his initial collision injury
recovery such that the second collision injury event produced 18 months of
aggravation that he claimed.

[23]       
The difficulty this analysis faces is that the plaintiff was not in fact
successful in the First Action on the issue of damages. The plaintiff’s claim
in the First Action failed in its entirety. The fact he was successful in the
Second Action does not change this result.

[24]       
The test for apportionment, governed by R. 14-1(15), was set out in Sutherland
v. The Attorney General of Canada, 2008 BCCA 27, at para. 31:

(1) the party seeking apportionment must establish that there
are separate and discrete issues upon which the ultimately unsuccessful party
succeeded at trial;

(2) there must be a basis on which the trial judge can
identify the time attributable to the trial of these separate issues;

(3) it must be shown that
apportionment would effect a just result.

[25]       
Strictly speaking, the plaintiff cannot bring himself within this test
because he was not successful on the First Action and it cannot be said that he
succeeded on any separate and discrete issues in the First Action. Thus, the
first criterion of the above test is not satisfied.

[26]       
Nevertheless, the plaintiff’s submissions with regard to apportionment
in the First Action have merit in a separate respect. Essentially, he says that
in the particular facts of this case, where two actions were tried together,
there is a proper basis to apportion costs, and doing so is necessary to effect
a just result. The rationale for that argument lies in the fact that some of
the evidence he called which related to his claim of damages arising from the
First Accident was also relevant and necessary to prove his damages from the
Second Accident.

[27]       
The plaintiff submits that only three days of trial time should be
recoverable by the Defendants and Third Party as costs in the First Action: two
days for evidence and one for submissions. The plaintiff submits these costs
should be fixed at $11,000 plus appropriate disbursements.

[28]       
MacIntyre v. Pitt Meadows Secondary School, 2010 BCSC 852,
concerned a plaintiff who had brought three actions against separate
defendants. The actions were tried together and the plaintiff succeeded in two
of three actions. On costs, the plaintiff made similar submissions to those
advanced here. At paras. 14-16 Butler J. reasoned:

[14] The court is given a broad discretion with respect to
costs. The discretion must be exercised judicially. The objective of all rules
relating to costs is to effect a just result between parties….

[15] I accept the submission of the plaintiff that the
circumstances of this case are such that it would be unjust to award to the
successful parties 100% of their costs for the whole trial. The unfairness
arises primarily because the liability issue in the First Action was not tried
separately. The plaintiff attempted to have that issue severed for trial but
the School opposed severance of the liability and damage issues. The parties
all accepted that there was a need to have the damage issues in the three actions
tried together. This meant that the liability issue in the First Action was
heard with the damage issues and there was a prolonged proceeding. Frequently
during the trial, one of the defendants or the Third Party was not actively
involved with a witness or an issue.

[16] In these circumstances,
there would be some unfairness to the parties who lost one or more issues if
costs were awarded for 100% of the trial preparation and attendance. If the
plaintiff was awarded costs for the whole of the trial it would be unfair
because he was unsuccessful in the action that took the most time. If the
School received 100% of its costs it would be unfair because it was not
involved in many of the damage issues. Further, the School would receive a
disproportionate amount of costs when compared with the plaintiff, even though
the plaintiff was successful in two of the actions. Similarly, it would be
unfair to the Motor Vehicle Defendants if they had to pay 100% of the costs
when they had no involvement in the First Action.

[29]       
Although the facts of the present case differ from MacIntyre, the
discussion of the court’s discretion and fairness is relevant.

[30]       
I start with the observation that, although the trial dealt with two
different actions arising from two separate accidents, it would be both
artificial and erroneous to conclude that the evidence can be allocated to one
action or the other as though they unrelated and thus could be neatly placed in
watertight compartments. A fair analysis requires a recognition that this trial
was not divided in two completely separate components. As the plaintiff argues,
a not-insubstantial portion of the evidence that he called was relevant to both
actions. The plaintiff’s position is that the damages claimed in the Second
Action had to be considered in the context of the injuries incurred in the
First Accident: they were characterizable as aggravations of those prior
existing injuries. Accordingly, the evidence was necessary to establish his
claim in the Second Action.

[31]       
There is substance to that submission.

[32]       
In the result, I am unable to accept the position advocated by the
Defendants and Third Party. I conclude that a fair and just allocation of costs
will entail some measure of apportionment. Because that exercise does not lend
itself to scientific precision, in order to achieve fairness, there will
necessarily be an element of arbitrary judgment required.

[33]       
It is clearly appropriate to attribute all time spent on the issue of
liability in the First Accident to the First Action; the Defendants and Third
Party are entitled to their costs for that.

[34]       
In my opinion, it is also appropriate to attribute the time expended on
the issue of loss of future income to the First Action. This is because damages
for loss of future income were only claimed in the First Action, not in the
Second Action. The plaintiff’s claim in the Second Action was limited to 18
months. As a result, the plaintiff concedes that “[t]here could not be an award
for loss of future capacity with this limitation in place.”

[35]       
However, I accept that the some of the evidence at trial concerning loss
of future income was also relevant to establishing damages in the Second
Action. The plaintiff put it this way in submissions:

6. Two days of trial time may
have been spent on future income evidence, but the loss of liability does not
automatically lead to costs in favour of [the] Third Party. It is something the
Plaintiff had to do given the nature of his Alex Fraser Bridge collision
injuries.

[36]       
The approach which I find must govern the outcome, broadly stated, it
this:

a)    For the First
Action, in accordance with the general principle that costs follow the event,
because the plaintiff failed to prove his case, he is liable to pay the costs
of the Defendants and Third Party.

b)    However, some of
the evidence called by the plaintiff to support his claim in the First Action
was also applicable to the Second Action.

c)   
The plaintiff was successful in his prosecution of the Second Action –
certainly substantially successful – and is thus entitled to his costs. I do not
see a proper basis to apportion the costs of this action.

[37]       
I have considered and weighed the submissions of the parties in terms of
allocation of trial time. In my view, the appropriate assignment of the fifteen
days is as follows:

a)    8.25 days should
be attributed to the First Action. Those will be allocated between the parties
on the basis that the Defendants and Third Party are entitled to recover for
five days and the plaintiff will recover for the balance, three and a quarter
days. The practical effect of that order is that, for that part of the trial, after
allowing for offset, the Defendants and Third Party will have the costs of one
and three-quarter days.

b)    6.75 days should
be attributed to the Second Action. The plaintiff will have his costs for that
part of the trial.

c)   
In the final analysis, after offsets, the plaintiff will recover costs
of five days of trial.

[38]       
With respect to the quantum of costs, the plaintiff was awarded $50,100
in damages in the Second Action. As this amount is less than $100,000, R.
14-1(1)(f)(i) applies:

(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, real property, a builder’s lien and personal property 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, or

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

[39]       
Rule 15-1(15) states:

(15) 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:

(c) if the time spent on the hearing of the trial is more
than 2 days, $11000.

[40]       
The plaintiff submits this is an appropriate case for the Court to
exercise its discretion to order costs in excess of the applicable $11,000
limit. He seeks an additional $1,500 per day of trial after the first three
days.

[41]       
In support of that claim, the plaintiff relies on Peacock v. Battel,
2013 BCSC 1902, where Mr. Justice Affleck determined that $1,500 per day of
trial beyond three days appropriate (see paras. 16-23) in the following
circumstances (at para. 18):

[18] Special circumstances have
been held to apply in cases where the trial took longer than the maximum amount
of days referenced in the fast track litigation rule, or the action was complex
or where a reasonable offer to settle was made but not accepted.

[42]       
The defence in the Second Action submits there are no such special
circumstances in this case, saying: “[t]his trial took longer than 3 days, but
only because the plaintiff advanced claims related to liability and loss of
capacity that were thoroughly rejected by the jury.”

[43]       
I have already dealt with attributing time spent to issues of liability
and loss       of capacity. The trial of the Second Action took longer than
three days. I am not able to say that it could have or should have been
completed within three days. My conclusion is that, in the circumstances, a
fixed costs award of $14,000 is appropriate, reflecting my finding that the
plaintiff is entitled to his costs for five days of trial.

[44]       
The defence in the Second Action also made submissions regarding apportionment
on account of the plaintiff’s claim for future loss of income. As discussed
above, this claim arose in the First Action but, to some degree, informed the
discussion of injuries in the Second Action. In light of my decision dividing
trial time between the First Action and the Second Action, an apportionment on
this issue is unnecessary.

Should the Court order limited recovery of disbursements?
If so, to what extent?

[45]       
Turning then to the issues raised by the defence in the Second Action
regarding disbursements, should the plaintiff’s disbursements related to the
testimony of various expert witnesses be limited or disallowed?

[46]       
The defence submits the reports and testimony of the plaintiff’s expert
witnesses dealt in large part with the issue of loss of future income and
therefore disbursements for the following experts should be disallowed or
limited: Dr. Anderson, Dr. McGraw, Dr. Moola, Dr. Robinson, Mr. Dimou, Dr.
Sidhu, Dr. Sohal, Dr. Longridge, and Mr. McNeil.

[47]       
The plaintiff’s submissions on this point have already been canvassed:
he submits leading this evidence was necessary context for the evidence of
injury aggravation in the Second Action. As I have said, I agree with the
plaintiff that this was necessary to a degree, but not to the extent he advances.

[48]       
The Court has the jurisdiction to disallow a portion of the
disbursements related to experts whose testimony was only partially related to
issues where the plaintiff enjoyed success at trial: Lee v. Jarvie, 2013
BCCA 515, at paras. 45-52.

[49]       
In the present case the reports and testimony of the above noted experts
were partly related to the issue of loss of future income and partly related to
other damages issues in the Second Action. Even the reports of Dr. Longridge,
whose evidence in the defence’s submission concerned only an injury arising
from the First Accident and ought to be entirely excluded from a disbursement
award, were relevant to the Second Action insofar as they assisted the jury in
understanding the plaintiff’s physical condition prior to the Second Accident.

[50]       
In the circumstances I would allow the plaintiff’s disbursements related
to the above-noted experts (except for Mr. McNeil, as discussed below) but
reduce them by 25%.

[51]       
The plaintiff submits that the disbursements of Defendants and Third Party
in the First Action with respect to surveillance evidence should be disallowed.
This position is based on the proposition that the jury obviously did not
accept the position advanced by the Defendants and Third Party that the
plaintiff was an untruthful witness.

[52]       
In my view, that is not a conclusion that flows logically and
compellingly from the verdict. I see no basis to disallow those disbursements.

Should an award of special costs against the Plaintiff be made on account
of the expert evidence of Mr. McNeil?

[53]       
The defence in the Second Action made further submissions with respect
to Mr. McNeil, who, it is said, acted as an advocate for the plaintiff in
breach of his obligation to the Court. In addition to seeking to exclude
disbursements related to his evidence, the defence seeks special costs on
account of Mr. McNeil’s advocacy.

[54]       
Advocacy on the part of expert witnesses justifying a special costs
award was discussed in Coulter v. Ball et al, 2003 BCSC 1186, at paras.
75-76:

[75] The use of obviously flawed expert reports is conduct
that has been found by the Courts to warrant an award of special costs, see Heppner
v. Schmand, supra. In McKitrickv. Iskic, [1999] B.C.J. No. 1724,
Madam Justice Bennett stated, although declining to order special costs on that
basis in the case before her at para. 11:

There is no doubt that when a party bases a claim or defence
on obviously flawed reports, or an unsubstantiated basis, special costs may be
awarded.

[76] One factor that has been
considered by the Courts is a history of judicial criticism of the expert’s
opinion, see Heppner, supra. In that regard, Dr. Posthuma has, in a
number of other cases, been criticised as an advocate by the Court.

However, in that case Ross J. found that a special costs
award was not warranted even though the expert in question (Dr. Posthuma) had
been “argumentative and evasive” and was “acting as an advocate for the
defence”. Ross J. concluded the expert “was [not] deliberately being untruthful
or trying to mislead the Court.” Further, Ross J. found the defence was not
trying to mislead the Court by tendering his evidence.

[54]     At the conclusion of the appearance of Mr. McNeil,
I quite made clear to him that the manner in which he had prepared his evidence
and testified at trial was not acceptable. The situation is complicated by the
fact he has, on two previous occasions, had his evidence ruled inadmissible or
been the subject of critical commentary by judges of the court. All of that
forms the backdrop to the position taken by defence counsel.

[55]     I do not consider that the matter warrants this
Court making an order of special costs against the plaintiff. There is nothing
to cause me to conclude that plaintiff’s counsel conducted himself in a manner
that was anything other than proper. It seems to me that it is Mr. McNeil whose
conduct is been found wanting. He has been admonished; I will of course order
that the disbursements relating to his involvement are disallowed; finally, I
expect that the cumulative effect of his appearances will have a salutary
effect on the approach he brings to future forensic endeavors. Certainly, he is
now someone whose credentials as an expert witness would seem to be somewhat
tarnished.

[56]     In the result, the disbursements related to Mr.
McNeill’s evidence are disallowed; there will be no order for special costs in
respect of this witness.

What is the appropriate deduction under the Insurance (Vehicle) Act?

[55]       
The plaintiff has received benefits, engaging s. 83(5) of the Insurance
(Vehicle) Act:

83 (5) After assessing the award
of damages under subsection (4), the amount of benefits referred to in that
subsection must be disclosed to the court, and taken into account, or, if the
amount of benefits has not been ascertained, the court must estimate it and
take the estimate into account, and the person referred to in subsection (2) is
entitled to enter judgment for the balance only.

[56]       
The parties dispute the amount of benefits received on account of the
Second Accident. The defence says the plaintiff has received $8,607.71, while
the plaintiff says the appropriate figure is $1,293.76

[57]       
The difference in figures results from the plaintiff’s submission that
all temporary disability payments made to him were for injuries sustained in the
First Accident. He submits the only properly deductible amount in the MSP
payments totalling $1,293.76.

[58]       
In order to properly understand the basis for the allocation, I sought
clarification from counsel on the issue. By way of response, counsel for the Third
Party provided an affidavit which, to my mind, properly explains the circumstances
of the payment of Total Temporary Disability benefits to the plaintiff. Based
upon the information provided there, I am satisfied that, although a single
cheque was issued in the amount of $15,000, and the notation on the check makes
reference to one file number only (the first accident), the benefits were
actually paid in respect of both files, i.e., both motor vehicle accidents.
Specifically, I accept that $8,000 was paid in respect of the first motor
vehicle accident and $7,000 in respect of the second.

[59]       
The second issue of contention between the parties concerns Part 7
benefits paid by ICBC. An examination of the records relating to those
payments, by my calculation, shows a total amount of $1,608.61 for the Letwin
MVA file, that is, the second MVA. Of that, $1,102.07 is allocated to MSP
payments; $506.54 is indicated as “CL288 payment".

[60]       
Defence counsel appears to take the position that the entire amount
represents Part 7 benefits and should be deducted from the jury’s award.

[61]       
The plaintiff contests that approach. He accepts that MSP payments are
properly deductible from the award but says the CL288 payments were made to
medical practitioners for reporting purpose. They are, he says, an
administrative expense and are not deductible benefits.

[62]       
While I was provided no authority on the matter, it is my view that the
plaintiff’s analysis is the correct one.

[63]       
In the result, the jury award will be reduced by $8,102.07. This is comprised
of the allowable Total Temporary Disability benefit and also the MSP payments
in the amount of $1,102.07.

[64]       
I should note that these figures, specifically with respect to the MSP
and CL288 expenditures, are based on my own calculations, which I believe to be
accurate. If I have erred in my calculation of the actual sums, I expect
counsel will make the necessary adjustments.

[65]       
Finally, in his supplemental submission, counsel for the Defendants and
Third Party seeks an award of extra cost relating to the attendance of his
articled student to assist him at trial. He says a 50% increase of the amount
of units would be appropriate in the circumstances.

[66]       
I am not persuaded that this is a cost which should be ordered in the
facts of the case. I note that plaintiff’s counsel conducted his case without
additional in-court support. In my view, there was nothing about the task of
defending these claims that would take the case out of the realm of the
ordinary. It is not a situation where the court would reasonably conclude that
the cost of more than one lawyer was required.

DISPOSITION

[67]       
In the result, the following orders are made with respect to the matter
of costs and disbursements:

a.   
The
plaintiff shall recover his costs of trial in the amount of $14,000. This
reflects offsets of the cost entitlement of the Defendants and Third Party in
the First Action.

b.    The Defendants
and Third Party are entitled to recover their disbursements from the First
Action.

c.     The
plaintiff is entitled to recover his disbursements from the Second Action,
subject to the limitation that he shall recover only 75% of his disbursements
for the following witnesses: Dr. Anderson, Dr. McGraw, Dr. Moola, Dr. Robinson,
Mr. Dimou, Dr. Sidhu, Dr. Sohal, and Dr. Longridge.

d.    Any
disbursements related to the evidence of Mr. McNeil are disallowed.

e.    The jury award
of $50,100 is reduced by $8,102.07 to reflect the payment of a Total Temporary
Disability Benefit and MSP benefits paid. The award, net of those deductions is
$41,997.93.

“J.
Williams J.”