IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Bamani–Moghaddam v. Mojdehie, |
| 2010 BCSC 191 |
Date: 20100211
Docket: M064736
Registry: Vancouver
Between:
Farzaneh Bamani–Moghaddam
Plaintiff
And
Neila Jalil Mojdehie, BMW Canada Inc.
and
Yaletown Interiors (1994) Ltd.
Defendants
Subject to Rule 66
Before: District Registrar Sainty
Reasons for
Decision
Counsel | J.L. Harbut |
Counsel | J.V. Marshall |
Place and | Vancouver, B.C. |
Place and | Vancouver, B.C. |
[1]
This action relates to
a motor vehicle accident that occurred on November 23, 2004 when the plaintiff
was stopped at red light at the intersection of Marine Drive and Hanes Avenue
(in North Vancouver) and was rear-ended by the defendant Mojdehie.
Liability was admitted. The plaintiff claimed to have suffered injuries
to her neck, shoulders and upper back as a result of the accident.
[2]
The plaintiff commenced
this action on November 20, 2006 pursuant to Rule 66 of the Rules of Court.
Following examinations for discovery (held October 5, 2007) the defendants
delivered an Offer to Settle under (then) Rule 37 of
the Rules of Court offering to settle this matter on the following
terms:
1.
The sum of FIFTEEN THOUSAND ($15,000.00) DOLLARS (new money), after
taking into account Part 7 benefits paid or payable pursuant to Section 25 of
the Insurance (Motor Vehicle) Act, R.S.B.C.
1996, c.231, and any advances paid to date; and
2.
Costs in accordance with Rule 37(22) and (37).
[3]
Rules 37(22) and (37)
[in force at the time the offer was made] provided:
(22)
Subject to subrule (22.1)[1], if an offer is accepted,
(a)
if the offer was made by the plaintiff, the plaintiff
is entitled to costs, or
(b)
if the offer was made by the defendant, the plaintiff
is entitled to costs assessed to the date the offer was delivered to the
plaintiff, and the defendant to costs assessed from that date.
(37)
Despite subrule (22), the plaintiff is not entitled
to costs other than disbursements if
(a)
an offer is accepted for a sum within the jurisdiction
of the Provincial Court under the Small Claims Act, and
(b)
the proceeding in which the offer was made could
appropriately have been brought in the Provincial Court.
[4]
The offer was accepted
on December 3, 2007. On December 13, 2007, Mr. McGee (plaintiffs
counsel at the time) wrote to Mr. Carmont (defence
counsel at the time):
We confirm
that we have settled Farzaneh Bamani-Moghaddams
claim in this matter for $15,000.00, plus disbursements. We now enclose a
schedule of our disbursements for your review.
We look forward to hearing from you at your
earliest convenience.
[5]
Some negotiations
ensued to resolve the issue of costs (including the defendants costs) but no
resolution was reached. The plaintiff took out an appointment to assess
her costs set for March 25, 2008. Attached to that appointment was a list
of disbursements. No claim was included in the plaintiffs bill of costs
for tariff items under Appendix B of the Rules of Court.
[6]
Defence counsel then
served its bill of costs on the plaintiff. That bill of costs claimed 31 units
for various tariff items, as well as disbursements totalling $2,727.63,
including $1,950.60 in investigative services undertaken shortly after the defendants
offer to settle was served on the plaintiff.
[7]
The assessment of the
parties costs was adjourned to August 14, 2008.
[8]
A new rule governing
offers to settle and the costs consequences thereof (Rule 37B) was promulgated
and came into effect on July 1, 2008. That Rule applied to offers to
settle made before the Rule came into effect, including this offer to settle in
this action. At the time it was enacted, new Rule 37B did not contain a
provision equivalent to (former) Rule 37(37).
[9]
The issue of whether a
partys costs would be limited to disbursements only in a case settled within
the monetary limits of the Small Claims Act was in a state of flux
following the enactment of new Rule 37B. The issue came before this court
in Goertz v. Calin,
2008 BCSC 1716. In that case, Garson J. decided
(at paragraphs 23-4):
The rule [37B(5)] only permits the Court to deprive a party, "in
whole or in part" of her costs to which she "
would otherwise be
entitled
.after the date of delivery of the offer to settle;"
[emphasis added].
Accordingly, there is no basis in R. 37B on
which this Court could deprive the plaintiff of costs incurred before the date
of the delivery of an offer regardless of whether the ultimate settlement is
within the monetary jurisdiction of the Provincial Court.
[10] On August 13, 2008, the assessment
of the plaintiffs costs was adjourned to October 3, 2008 due to plaintiffs
counsel being double-booked. On September 30, 2008, plaintiffs counsel
delivered an amended bill of costs seeking tariff costs, as well as
disbursements, on behalf of the plaintiff and shortly thereafter (on October 1,
2008) advised that they were in the process of preparing motion materials (in
accordance with the Icecorp[2] line
of decisions) for an order that the plaintiff be entitled to claim her tariff
costs, as well as her disbursements, on the basis that it was appropriate for
her to bring this action in the Supreme Court, rather than the Provincial,
Court of this province. Defence counsel asked that the application be
brought quickly.
[11] Through October to December 2008,
there were negotiations to try and settle the costs issues but they remained
unresolved when, in January 2009 plaintiffs counsel delivered its motion for
tariff costs. That motion was opposed. Plaintiffs counsel said it
intended to proceed with its motion as soon as
possible, but did not proceed in a timely manner.
[12] Defence counsel changed and nothing
much was done until April 2009 when a further attempt was made to settle costs
but no dates were set for either an assessment of the parties costs or for
hearing the plaintiffs motion.
[13] Dates were attempted to be set over
the summer of 2009 but there was some discord between the parties as to what
was to be heard the plaintiffs motion or the parties respective costs
assessments. The parties remained at odds and no dates were secured or
agreed to as there was no agreement about what was to be heard.
[14] In October 2009, the defendants
counsel served materials, including a motion, pursuant to Rule 57(43) seeking
disallowance of the plaintiffs costs on the basis of her failure to procure
her assessment of costs. Rule 57(43) provides:
If a party entitled to costs fails to assess
costs and prejudices another party by failing to do so, the registrar may
certify the costs of the other party and certify the failure and disallow all
costs of the party in default.
[15] The hearing of the defendants
motion was set for December 31, 2009 and later adjourned to January 28,
2010.
[16] On January 26, 2010, the plaintiff
reset her assessment of costs for the same date [January 26] by filing a
requisition to which was attached a bill of costs claiming both tariff items
and disbursements.
[17] These two matters the defendants
motion under Rule 57(43) and the plaintiffs appointment to assess its costs
came before me on January 28th. I heard from Mr. Harbut
(for the plaintiff) and Ms Marshall (for the defence). Ms Marshall argued
that, before proceeding to deal in any way with the plaintiffs costs, I must
first decide the defendants Rule 57(43) application. I agree.
[18] In order to succeed under that Rule
and have me disallow the plaintiffs costs and certify those of the defendants,
the defendants must show that the party entitled to receive costs (here the plaintiff)
has failed to have her costs assessed and that such failure has prejudiced the
party bound to pay the costs (the defendants). The burden of proving
prejudice caused by delay is upon the person alleging it: see Xerox Canada
Inc. v. Sweany (1990), 42 C.P.C.
(2d) 101.
[19] The issue of whether the defendants
were prejudiced and whether such prejudice was caused by the plaintiffs
actions are questions of fact to be decided by me on the evidence presented at
this hearing: see Standard Trust Company v. 110655 Canada Limited,
[1997] B.C.J. No. 1946, at para.
48.
[20] Here, while there may have been a
delay occasioned by the plaintiff in failing to set its motion or assessment in
a timely fashion, there is no evidence before me that the defendants have, in
any way, been prejudiced by the plaintiffs failure. All that is before
me is a statement in the defendants submissions that:
…the plaintiffs delay in having her costs
procured has caused prejudiced [sic] to the defendants with regard to
information lost by the virtue of time and Ms. Amanda Groves, the handling
lawyer, leaving North Shore Law, as well as prejudice to the defendants with
regard to having our own Costs and Disbursements assessed due to concerns about
set-off (Bajic v. Friesen [2006 BCSC 1290])[3].
It is submitted that this prejudice was caused by the plaintiff.
[21] In my view, the defendants have not
discharged their burden of proving any prejudice to them caused by the
plaintiffs delay in bringing its application to assess its costs. A
simple statement in the defendants submissions of an alleged prejudice is not
sufficient evidence of any prejudice to them. There is no affidavit from
Ms Groves that her retention of the issues was fading. Nor is there any
affidavit (or other) evidence that Ms Groves would not be available to assist
counsel for the defendants on any assessment of the defendants costs.
[22] Nor, in my view, can it be said that
the defendants have been prejudiced by not having their own costs and
disbursements assessed as, despite there being a right of setoff of the
plaintiffs disbursements against those of the defendants, even assuming that
the plaintiff is only entitled to disbursements and the defendants are
completely successful in upholding their bill of costs, the difference between
the two bills of cost before me is some $2,908.81, an insubstantial amount in
the overall scheme of things in my view.
[23] Having found that the defendants
have not met their burden of proof, I hereby dismiss the defendants
application under Rule 57(43) of the Rules of Court.
[24] What then ought I to do?
[25] Initially Mr. Harbut
argued that, if the defendants application failed, I ought to proceed to
assess the plaintiffs costs in accordance with the decision of Garson J. in Goertz: i.e., assess both the
plaintiffs tariff costs and her disbursements.
[26] In considering my options, during
the hearing, it came to my attention that the Rules of Court have been amended such that Goertz
may no longer be good law. Rule 37B was amended in 2009 to add a new
section (Rule 37B(7)) which provides:
37(7) A
plaintiff who accepts an offer to settle claims for a sum within the
jurisdiction of the Provincial Court under the Small Claims Act is not
entitled to costs, other than disbursements, unless the court finds there was
sufficient reason for bringing the proceeding in the Supreme Court and so
orders.
[27] Once I pointed out that provision to
Mr. Harbut, he asked that, if I decided to dismiss
the defendants application, I simply adjourn the assessment of the plaintiffs
costs so that he could bring an application before the Court for a
determination (under Rule 37B(7)) that his client had
sufficient reason for bringing this action in the Supreme, rather than the
Provincial, Court of this province, thus entitling her to claim both tariff
items and disbursements.
[28] The definition section of the Rules
of Court provides:
1(8) "court"
means the Supreme Court of British Columbia and, where a master has
jurisdiction, includes a master of the Supreme Court;
As a
registrar of the court is not included in the definition of court in the
Rules and Rule 37B(7) makes it clear that it is the
court that must decide if the plaintiff had sufficient reason to bring her
action in the Supreme Court, I cannot decide this issue (see Aydin & Co. v. Schaber,
2000 BCSC 925, at para. 7).
[29] The defendants, on the other hand,
submit that I ought not to adjourn this hearing. They say that I ought to
find that the parties reached an agreement in respect of costs (i.e.
that the plaintiff would receive her disbursements only up to the date of the
offer to settle and that the defendant would receive its costs (tariff items
and disbursements) thereafter) and proceed to assess the parties respective
costs on the basis of that agreement.
[30] In Cathcart
v. Olsen 2009 BCSC 618, I held that there were
three things from which a registrar might take her jurisdiction to assess a
partys costs:
(a)
an order of this Court;
(b)
a provision of the Rules of Court allowing for
such assessment; and
(c) a settlement agreement between the parties which provides
for the payment of costs to be assessed.
Clearly,
there is no order or provision of the Rules entitling me to take such
jurisdiction here. Ms Marshall submits that what there is is a settlement agreement between the parties which binds
them. Accordingly, she submits that all that remains for me to do is
assess the parties costs in accordance with that agreement.
[31] Mr. Harbut
argues that the parties were never ad idem in respect of the issue of
costs. He says that filing the appointment with only a list of
disbursements attached cannot be taken as evidence of the plaintiff abandoning
her tariff costs or of an agreement between the parties. Accordingly, I ought
not to proceed in these circumstances but rather should adjourn this hearing to
allow him to bring his Rule 37B(7) application.
[32] I disagree with Mr. Harbut. In my view, the evidence is clear. The
letter from Mr. McGee to Mr. Carmont of December 13, 2007
is unequivocal. It specifically states that the matter has settled for
$15,000 plus disbursements. It does not say plus costs and
disbursements (my emphasis). Further evidence of this fact is contained
in an email from Mr. McGee to Mr. Carmont of February
4, 2008 which says:
Trevor;
This matter
settled over six weeks ago. You have refused to pay the settlement or
our disbursements but have indicated that you want some sort of
set-off. We have requested your Bill of Costs with supporting documentation
and we have received nothing.
Either pay
the settlement and disbursements or send us your bill of costs and
supporting receipts. We are not settling any amount claimed by the
defendant without a BOC. Either you have costs or not. Lets see them.
[My emphasis.]
[33] In my view, one cannot get much
plainer than that the plaintiff expected to be paid her settlement funds
($15,000) plus her disbursements and to pay the defendants costs, not to
receive anything for her tariff costs. On the basis of that agreement, I
(or any other registrar) am given the jurisdiction to assess the plaintiffs
costs (disbursements only) and those of the defendant and I ought to
proceed. Further, as the evidence is unequivocal the offer was accepted
and an agreement made as to costs the provisions of Rule 37B, including subrule (7) thereof, have no application in this matter and
any application by Mr. Harbut is bound, in any event,
to fail: see Buttar v. Di Spirito, 2009 BCSC 72, at
paragraph 11.
[34] As I did not entertain submissions
at the hearing before me as to the specifics of the plaintiffs disbursements
nor the defendants costs I cannot proceed to assess them. Accordingly,
the parties will have to set their assessments for determination at a
convenient time. I am not, however, seized of the assessment as I have
not heard any evidence or submissions about the actual costs or
disbursements. However, if I am available to hear the matter, I will
certainly do so.
District Registrar Sainty