IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20160225

Docket: S-124938

Registry:
Vancouver

Between:

Abdi
Ali Mohamed

Plaintiff

And

Intransit
BC Limited Partnership, SNC-Lavalin Group Inc.,
Canada Line Rapid Transit Inc., doing business as Translink
and Protrans BC Operations Ltd.

Defendants

Before:
The Honourable Mr. Justice Voith

Reasons for Judgment

Introduction

[1]            
On July 27, 2015, in reasons indexed at 2015 BCSC 1300 (the “Reasons”), I
dismissed the action brought by the plaintiff, Mr. Mohamed, against the
defendants.

[2]            
The parties have now filed cross-applications. The plaintiff seeks an
order that the cost of the trial be reduced by three days to account, it is
argued, for various inefficiencies in the defendant’s conduct of the trial. The
defendants, in turn, seek double costs for all steps in the proceeding taken
after May 15, 2015.

The Action Advanced by Mr. Mohamed

[3]            
Mr. Mohamed, at the time of trial, was 44-years-old. He was born in
Somalia, left that country and eventually made his way to Canada. He has a
grade-four education and had worked in various capacities in the construction
industry.

[4]            
In November 2006, Mr. Mohamed was a passenger on a bus that was
involved in a significant motor vehicle accident (the “2006 Accident”), as a
result of which Mr. Mohamed suffered a number of serious and enduring
injuries. In the Reasons I said:

[9]        Of particular significance and relevance is the
fact that Mr. Mohamed suffered a severe and ongoing balance disorder. This
balance disorder prevented him from being able to work and from carrying out
many of his day-to-day activities. In addition, it caused him, in the ensuing
years, to fall numerous times. Some of the falls were serious, with Mr. Mohamed
injuring himself in some new way or being rendered unconscious. His dizziness
was made worse by his moving his head quickly, by his being in a car or on a
bus, by light and, in fact, by his riding on either escalators or elevators.

[10]      Over time, Mr. Mohamed developed some
strategies that abated these difficulties, but it is clear that the
difficulties with his balance continued to be a significant problem at the time
of his fall at the Aberdeen SkyTrain Station.

[11]      Mr. Mohamed also suffered other injuries as a
result of the 2006 Accident. These injuries are, however, less relevant to this
action and I need not address them directly.

[12]      Mr. Mohamed’s
claim for the injuries and loss he suffered as a result of the 2006 Accident
was resolved in or about July 2011.

[5]            
In the introductory paragraphs of the Reasons, I identified the central
factual issues that were raised by Mr. Mohamed in this action:

[1]        On July 17, 2010, the plaintiff, Mr. Mohamed,
suffered a fall while exiting the Aberdeen SkyTrain station in Richmond. Mr. Mohamed
asserts that he was misled by signage above an escalator that said “Way Out”,
and that depicted the figure of a person descending a set of stairs as well as
an arrow that pointed downwards. The escalator was, in fact, ascending. Mr. Mohamed
asserts that when he stepped onto the top step of the escalator, he lost his
balance and fell, and that he thereby injured his right knee.

[2]        The defendants, based
on various forms and pieces of evidence, argue that Mr. Mohamed never
attempted to use the escalator. Instead, they say that he exited the SkyTrain
station using a set of stairs that are immediately adjacent to the escalator.
They further argue that his injury occurred when he stumbled on these stairs.

[6]            
Two facts or sets of facts that emerged at trial are relevant for the
purposes of the present application. First, Mr. Mohamed continues to be
disabled and is unable to work. He now receives a disability pension.

[7]            
Second, much of the defendants’ evidence at trial was either unusual in
nature or had various evidential complexities attached to it. This evidence was
developed at length in the Reasons. For present purposes, it is sufficient to
identify that the defendant, Protrans BC Operations Ltd. oversees the operation
of the Canada Line in various ways. For example, it monitors the activities of
each Canada Line station through the cameras that are located at those
stations. On average, there are between 25-40 cameras at each station. It also
has a control room that is operated 24 hours a day by four different operators.
These operators can access any camera at any station. They also, as a matter of
practice or protocol, enter various types of information in the case, for
example, of an accident, in various logs.

[8]            
In this case, following Mr. Mohamed’s accident, Ms. Martin, a
Health, Safety, Quality and Environmental Coordinator with Protrans was
assigned to oversee the investigation of Mr. Mohamed’s accident. She
reviewed the relevant videos for the relevant time period from the Aberdeen
Station and, based on that review, she prepared a contemporaneous report. That
report asserted that Mr. Mohamed had exited the Aberdeen Station using the
stairs rather than the escalator. Unfortunately, for unknown reasons, the
relevant videos were lost or corrupted, could not be recovered, and were not
available at trial. Thus, the defendant, at trial, sought to rely on Ms. Martin’s
report and on her memory from her review of five years earlier.

[9]            
Various admissibility and evidential issues arose with each aspect of
this evidence and other related evidence. I addressed “Ms. Martin’s Viva
Voce Evidence” at paras. 60-67 of the Reasons. I addressed “the Martin
Report” at paras. 68-71 of the Reasons. I, similarly, addressed the
admissibility of what I described as “The Control Room Log Entry” at paras. 74-80.

[10]        
One further component of the defendants’ evidence was relevant. The
defendants sought to admit the oral communication of what a person in the control
room had seen and told the Canada Line attendant who had assisted Mr. Mohamed
immediately after his fall as “a common-law oral business record” or
declaration made in the course of duty. I addressed this issue at paras. 83-102
of the Reasons.

[11]        
In a similar vein, counsel for Mr. Mohamed sought to rely on
various ambulance and hospital notes which confirmed that Mr. Mohamed had,
from the outset, said he had fallen on an escalator rather than on a set of
stairs. Counsel argued these statements were in the nature of “spontaneous
statements” that constituted recognized exception to the hearsay rule. I addressed
this issue at paras. 114-122 of the Reasons.

[12]        
Ultimately I accepted the various forms of evidence that were relied on
by the defendants. I did not accept Mr. Mohamed’s evidence. I considered,
for various reasons, that he was a poor witness; Reasons at paras. 103-112.
I did not, however, consider that Mr. Mohamed had lied when he said he had
fallen on an escalator; Reasons at para. 113.

1.       Mr. Mohamed’s Application to Reduce the Costs of the Trial

[13]        
In the Reasons, at para. 127, I awarded the costs of the trial to
the defendants. Counsel for Mr. Mohamed now argues that aspects of the
defendants’ conduct during the trial unreasonably lengthened the trial, and
that the defendants should bear the costs of three days of trial. The plaintiff
relied on each of Moyer v. Bosshart, [1991] B.C.J. No. 3738 (S.C.),
costs aff’d by (1995), 7 B.C.L.R. (3d) 206 (C.A.) and Robinson-Phillips v.
Demuth, [1991] B.C.J. No. 3671 (S.C.), aff’d by 96 B.C.L.R. (2d) 1
(C.A.) in aid of this submission.

[14]        
The Court has discretion to vary its order as to costs. The burden is on
Mr. Mohamed to establish a basis that requires I reconsider any earlier
order, and to establish a compelling reason to deviate from the usual result as
outlined in Rule 14-1(9), that “costs of a proceeding must be awarded to the
successful party”.

[15]        
The trial of this action was set for eight days. The trial concluded in
seven days, with the evidence at trial occupying five days. A further half day
was used to address a successful application for the production of documents
that was brought by the defendants on the first day of trial. The plaintiff
delivered a schedule to the defendants, prior to trial, identifying the various
witnesses who were expected to give evidence and the time required for each
such witness. That schedule contemplated a seven-day trial. The schedule
further contemplated that the plaintiff’s case would occupy approximately four
days. The plaintiff now argues that the whole of the case, including closing
submissions, should have occupied four days.

[16]        
I do not propose to address the individual concerns the plaintiff now
raises in his application. Such applications should address serious concerns
with how a trial was conducted and address instances where one party’s
strategies or conduct gave rise to significant inefficiency. Such applications
should not require a court to revisit the evidence of different witnesses, or
the cross-examinations of those witnesses, or the strategies of counsel, to
determine whether that evidence was led or obtained in the most efficient
manner possible.

[17]        
Such an analysis is not consistent with how the trial process works or
how counsel make decisions during a trial. Different counsel addresses
different cases differently. They have different styles. Some are more thorough
or careful than others. Applying hindsight to the decisions made by counsel at
trial, or to how counsel may conduct a trial, absent issues of substance or
legitimate concern, is an endeavour that is both unproductive and fraught with
risk.

[18]        
In addition, the cost applications that now routinely follow trials
frequently give rise to significant, and often unnecessary, complexity, delay and
cost; see Clarke v. Clarke, 2015 BCSC 1005 at paras. 26-27.
Endorsing a process or analysis that revisits how a trial was conducted absent,
as I have said, significant concerns, has the prospect of further exacerbating
post-trial complexity and cost.

[19]        
I do not consider that either Moyer or Robinson-Phillips
is relevant to the present circumstances. In each case, it is clear that the
trial judge had real concerns with the manner in which the trial before them
had been conducted.

[20]        
In Moyer, for example, the trial judge observed that the trial
took longer than anticipated, that “[e]videntiary disputes arose daily, with
plaintiff’s counsel trying to adduce inadmissible evidence and offering
testimony that had little or no weight”. He further observed that “[p]laintiff’s
counsel wasted a good deal of time on irrelevant matters that did nothing to
support his claims”.

[21]        
The present trial was very different. I consider that both counsel acted
reasonably, and that the manner in which each conducted the trial was reasonably
efficient. Accordingly, Mr. Mohamed’s application to reduce the costs
arising from the trial of his action is dismissed.

2.       The Defendants’ Application for Double Costs

i)        The Relevant Rules

[22]        
The relevant parts of Rule 9-1 of the Supreme Court Civil Rules,
provide:

Definition

(1)        In this rule, "offer to settle"
means …

(c)        an offer to settle …
made under this rule, that

(i)         is made in writing by a party to a proceeding,

(ii)        has been served on all parties of record, and

(iii)       contains the following sentence: "The …………[party(ies)]…………,
…………[name(s) of party(ies)]…………, reserve(s) the right to
bring this offer to the attention of the court for consideration in relation to
costs after the court has pronounced judgment on all other issues in this
proceeding."

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:

(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;

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.

ii)       The Offers

[23]        
On May 14, 2015, the defendants issued a formal offer. They did not
offer Mr. Mohamed any compensation. Instead, they agreed, if Mr. Mohamed
consented to a dismissal of his action, to waive their costs and disbursements.

[24]        
On May 20, 2015, the plaintiff issued a formal offer in this matter in
the amount of $15,000 plus costs and disbursements.

[25]        
On May 21, 2015, the defendants rejected the plaintiff’s offer and
confirmed their initial offer; that offer being for no compensation, but a
waiver of costs and disbursements if the plaintiff agreed to a dismissal of his
action.

iii)      The Object of Rule 9-1

[26]        
Rule 9-1 is discretionary. Its dominant objective was addressed in Catalyst
Paper Corporation v. Companhia de Navegação Norsul, 2009 BCCA 16, where the
Court of Appeal summarized various cases that are relevant to the Court’s
discretion to award and withhold costs. After summarizing various developments
in the law of costs, the Court said:

[16]      It seems to me that the
trend of recent authorities is to the effect that the costs rules should be
utilized to have a winnowing function in the litigation process. The costs
rules require litigants to make careful assessments of the strength or lack
thereof of their cases at commencement and throughout the course of litigation.
The rules should discourage the continuance of doubtful cases or defences. This
of course imposes burdens on counsel to carefully consider the strengths and
weaknesses of particular fact situations. Such considerations should, among
other things, encourage reasonable settlements.

iv)      The Individual Considerations Raised by Rule 9-1 (6)

a)         Should the Defendants’ Offer Reasonably Have Been Accepted?

[27]        
The answer to the foregoing question is not to be addressed with the
benefit of hindsight; Hartshorne v. Hartshorne, 2011 BCCA 29 at para. 27;
A.E. v. D.W.J., 2009 BCSC 505 at para. 55, aff’d 2011 BCCA 279. Instead,
the reasonableness of a decision not to accept an offer is to be assessed with
reference to such factors as “the timing of the offer, whether it had some
relationship to the claim (as opposed to simply being a “nuisance” offer),
whether it could be easily evaluated, and whether some rationale for the offer
was provided”; Hartshorne at para. 27. The foregoing factors are
neither exhaustive nor limiting of a court’s ultimate discretion.

[28]        
The defendants’ first offer to settle, made on May 14, 2015, was both
explicit and clear. That first offer also identified a number of risks that
were present in Mr. Mohamed’s case. Both offers were presented within a
reasonable amount of time prior to the commencement of trial. Both offers
postdated Ms. Martin’s discovery and the exchange of documents. Thus, the
plaintiff had a good sense of what Ms. Martin’s evidence would be, and
what videotape and other relevant documents or reports existed. It is also
salient that Mr. Mohamed had counsel who could assist him to reasonably
evaluate the difficulties associated with his case.

[29]        
Counsel for Mr. Mohamed argued that I should treat the offers as
though they had not been made. This was, he said, because those offers did not
reflect an earnest effort to settle or to compromise. The offers made by the
defendants were, it was argued, in the nature of “nuisance offers”.

[30]        
The plaintiff relied on several authorities. In McVeigh v. McWilliam,
2010 BCSC 655, the defendant had offered to waive costs in exchange for the
plaintiff agreeing to a consent dismissal of its claim. The plaintiff did not
accept this offer and was unsuccessful at trial. The defendant sought double
costs on the basis that the offer ought reasonably to have been accepted. The
court concluded, inter alia, that “the defendant’s offer did not really
involve any meaningful element of compromise” and that it was not unreasonable
for the plaintiff to refuse the offer; at paras. 24-25.

[31]        
The plaintiff also relied on Stuart v. Hugh, 2011 BCSC 575, a
defamation case in which the defendants made an offer of $5, a waiver of their
costs, and payment of the plaintiff’s costs on a party and party basis. The
plaintiff refused the offer. His claim was subsequently dismissed a trial. The
Court concluded that the plaintiff would have been obliged to consider a modest,
but meaningful, offer of payment given that his claim was a difficult one. However
the offer made was not meaningful in the sense that it provided little benefit,
and acceptance would imply that the claim being advanced was without merit; at paras. 35-36.

[32]        
In Giles v. Westminster Savings and Credit Union, 2010 BCCA 282,
the Court said that “plaintiffs should not be penalized for declining an offer
that did not provide a genuine incentive to settle”; para. 88.

[33]        
I consider that each of these cases is limited to its circumstances and
to the assessment and exercise of discretion that the Court undertook in the
particular case. I do not accept that in order for Rule 9-1 to become engaged
there is an obligation on a party to make an offer of some compensation in
circumstances where, based on its measured assessment of the merits, no such
payment is warranted.

[34]        
In Bay v. Pasieka, 2014 BCSC 809, Butler J. said:

[20]      In some circumstances,
a nominal offer may in fact be reasonable and should be accepted. In this case,
the plaintiff ought to been aware of the frailty of her case, if not from the
start, then at the very least from the time of the examination for discovery of
[the defendant]. Keeping in mind that “all litigation comes with a degree of
risk” and that plaintiffs should not be “cowed into accepting an unreasonable
offer out of fear of being penalized with double costs”, I find that the offer
[of $1.00] was one that the plaintiff should have accepted given that she had
neither legal nor factual support for her position.

[35]        
There are, and will be, cases that are either frivolous or of limited
merit. Similarly, there are, and will be, cases where the legal or evidentiary
difficulties associated with a party’s case are significant or, perhaps, insurmountable.
In Hartshorne, the question posed by the Court was whether the offer had
“some relationship to the claim”; at para. 27. An offer to simply waive
costs, in given circumstances, may be an appropriate response to the claim
being advanced.

[36]        
In the present case, whether the offers that the defendants made were
reasonable, turns on several further factors. The central factual issue I have
identified, of how Mr. Mohamed exited the Aberdeen Station, was
dispositive of his claim. If I accepted the evidence of Ms. Martin, and
the reports or records that existed, over Mr. Mohamed’s evidence, it was
clear that Mr. Mohamed would receive nothing.

[37]        
On the other hand, I recognize that aspects of both parties’ evidence
turned on discrete questions of admissibility and, in this respect, it was
somewhat unusual. Thus, for example, there are very few cases that address the
admissibility of “oral business records and declarations made in the course of
duty”. The resolution of these discrete legal issues was central to the merits
of each party’s position.

[38]        
One further consideration is relevant. The defendants had argued that
the settlement that Mr. Mohamed received following the 2006 Accident
addressed the right knee injury that he suffered in that accident, and that
that settlement foreclosed any further claim for the injury Mr. Mohamed
said he suffered in this action. This submission, if accepted, would also have
been dispositive Mr. Mohamed’s claim.

[39]        
This further issue had been identified in the defendants’ pleadings and
it was addressed in their first offer of settlement. I did not consider that I
had to address this issue in the Reasons, and do not consider that it would be
appropriate for me to do so now. I can say that it was an issue of merit, and
that it constituted an additional threshold hurdle that the plaintiff had to
overcome in order to succeed in his action.

[40]        
In my view, these various factors served to significantly increase the
risks that attended Mr. Mohamed’s claim and caused the defendants’ offers
to be “well within the range of outcomes that could reasonably have been
expected, and was one which ought reasonably to have been accepted”; Haigh
v. Kent, 2013 BCSC 298 at para. 15; see also Tompkins v. Bruce,
2012 BCSC 833 at para. 29; Brewster v. Li, 2014 BCSC 463 at para. 22.

b)         The Relationship Between the Defendants’ Offers and the Judgment
of the Court

[41]        
The defendants’ offers were more favourable to Mr. Mohamed than was
the result he obtained at trial. Mr. Mohamed was ordered to pay the
defendants’ costs. He could have avoided this result had he accepted the offers
that were made to him.

c)         The Relative Financial Circumstances of the Parties

[42]        
It is this aspect of the analysis that is most troubling. Mr. Mohamed
is unquestionably disabled and unable to work as a result of the 2006 Accident.
He receives a modest disability pension. He received some award, of an unknown
amount, for the injuries he suffered in the 2006 Accident. That award, however,
was intended to compensate him for his pain and suffering, for his loss of
capacity, and for his future care costs. A cost award, in this action, that
would diminish or deplete the funds that Mr. Mohamed received for those
purposes, would be an exceedingly harsh result.

[43]        
Two competing objectives and concerns are engaged. On the one hand, it
is inappropriate that an indigent person, or person with extremely strained
financial circumstances, should be insulated from Rule 9-1 and its
consequences. The object of requiring the parties to an action to carefully
consider the settlement offers that are made to them, and to weigh the consequences
of failing to do so, should pertain to all litigants.

[44]        
On the other hand, Rule 9-1(6)(c) expressly contemplates that the Court should
address the “relative financial circumstances of the parties” in deciding
whether to make an order under subrule (5).

[45]        
In Giles, Frankel J.A., for the Court, emphasized that a trial
judge’s discretion as to costs must be exercised in a “just, principled, and
consistent” manner; at para. 88.

[46]        
Several considerations inform the present application of Rule 9-1(6)(c).

[47]        
The disparity in the “relative financial circumstances of the parties”
is significant; see for example Smith v. Tedford, 2010 BCCA 302 at paras. 18-19;
Gregory v. Insurance Corporation of British Columbia, 2010 BCSC 1369 at para. 13,
var’d on other grounds 2011 BCCA 144. There was, however, no evidence or
suggestion that the defendants used their financial resources to gain a
litigation advantage; see British Columbia v. Salt Spring Ventures Inc.,
2015 BCCA 343 at para. 7.

[48]        
One purpose of Rule 9-1 is to attach a financial consequence or
financial imperative to a party’s failure to accept a settlement offer which,
the Court considers, should have been accepted. In Hartshorne, that
financial consequence was described as a “punitive measure…for that party’s
failure…to have accepted an offer to settle that should have been accepted”;
at para. 25; see also Wafler v. Trinh, 2012 BCSC 1708 at para. 19,
aff’d 2014 BCCA 95.

[49]        
In Han v. Park, 2013 BCSC 2296, Fitzpatrick J. addressed an
application for double costs brought against a plaintiff who was on a
disability payment. Fitzpatrick J. considered that the plaintiff’s “actions and
inaction in the litigation [showed] more than sufficient reason to justify the
‘penalty’”; at para. 63.

[50]        
In Wafler, a further case involving a person on a disability
pension, I considered that the plaintiff’s conduct and circumstances, which were
“extremely difficult”, did not warrant an order of double costs; at para. 38.
In Gregory, the Court declined to award double costs because such an
order would have had a “grievous” impact on the Plaintiff; at para. 13.
Similarly, in Hall v. Hall, 2014 BCSC 100, Saunders J. declined to make
an award of double costs because such a punitive costs award would be “unduly
harsh”; at para. 21.

[51]        
In some cases, an order that a party pay the ordinary costs of a trial,
though intended in concept to indemnify rather than to punish, can in real
terms and in its consequences be punitive. In this case, the reality is that Mr. Mohamed’s
personal and financial circumstances are such that the cost order which I have
already made will have a stark and meaningful consequence. Accordingly, I
consider that this factor weighs heavily against the defendants.

d)         Other Considerations

[52]        
Counsel for Mr. Mohamed, under this aspect of the Rule 9-1
analysis, raised many of the same issues that were raised in arguing that the
defendants had been inefficient in their conduct of the action. For the reasons
I have already given, I do not consider that these various submissions have
merit, or that they properly factor into the present analysis.

Conclusion

[53]        
I do not consider, in all the circumstances, that the order of double
costs the defendants seek would be appropriate. I also consider that the
success of the parties has been divided and that each should bear their own
costs of these applications.

“Voith J.”