IN
THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | King v. Horth, |
| 2010 BCSC 360 |
Date: 20100319
Docket:
07-5070
Registry: Victoria
Between:
Michael
Harold King
Plaintiff
And:
Genevieve
Brigitte Horth, Janis Lynn Thomas
and Gary Terrence Thomas
Defendants
Before: The Honourable Mr. Justice Johnston
Reasons for Judgment
On Costs
Counsel for the Plaintiff: | D. K. D. Duncan |
Counsel for the | S. Finn |
Counsel for | S. J. Harper |
Place and Date of Hearing: | Victoria, B.C. |
Place and Date of Judgment: | Victoria, B.C. |
[1]
This application concerns costs following the trial
of this matter in which I ordered that the Thomas defendants pay damages to the
plaintiff and that the action against the defendant Horth be dismissed. The
plaintiffs damages exceeded an offer to settle made by the Thomas defendants.
Neither the plaintiff nor the defendant Horth had delivered a formal offer to
settle.
[2]
Because the action was styled under Rule 66 and
the trial took place over 11 days, the parties have widely divergent
positions on the costs that should be ordered. I should note here that four of
the days were half days, so in total nine full days were taken in the trial.
[3]
This matter began under the ordinary rules in
December 2007. In July 2008 the plaintiff amended his statement of claim to add
this endorsement:
The plaintiff
hereby estimates that a trial of this action will be completed within two days
and elects to have this action proceed in accordance with Rule 66.
[4]
The plaintiffs claims throughout have been
against the defendant Horth as owner and driver of one motor vehicle and the
defendants Thomas as operator and owner respectively of a second motor vehicle.
[5]
The action arose out of an accident in which Ms.
Thomas drove her car away from a stop sign, travelled across an intersecting
through road, and was struck by the defendant Horth, who was driving
unremarkably on the through road. One or both of the defendant vehicles then
spun into the plaintiffs vehicle where the plaintiff was stopped at the stop
sign opposite the point from which Ms. Thomas had launched herself.
[6]
Both defendants denied liability to the
plaintiff. The defendant Horth pleaded that the plaintiffs negligence caused
or contributed to the accident and his injuries. The Thomas defendants did not
allege contributory negligence against the plaintiff.
[7]
The plaintiff says he should have his costs on
Scale B, under Rule 57, from the Thomas defendants and that the Thomas
defendants should be ordered to pay the costs of the defendant Horth directly
(a Sanderson order, based on Sanderson v. Blyth Theatre Co. [1903]
2 K.B. 533 (C.A.)). The plaintiff says in the alternative, if he is ordered to
pay the costs of the defendant Horth, he should be able to recover those costs
from the Thomas defendants (a Bullock order, based on Bullock v. The
London General Omnibus Company, [1907] 1 K.B. 264 (C.A.)).
[8]
In support, the plaintiff argues that the length
of the trial was unnecessarily extended by the defendants denial of liability,
which was exacerbated by the failure of the Thomas defendants to disclose the
existence of an inculpatory statement made by the defendant Janis Lynn Thomas
to an ICBC adjuster immediately after the accident. The plaintiff says the situation
was worsened because the defendants had not only a common insurer in ICBC, but
a common adjuster instructing counsel.
[9]
The Thomas defendants say that the fees portion
of the plaintiffs costs should be confined to $6,600 pursuant to Rule 66(29).
In the alternative, they argue that the plaintiff should recover costs for only
parts of the proceeding or on some issues or, in the further alternative, that
the Thomas defendants should be awarded costs on some issues. Finally, the
Thomas defendants argue that they should not be ordered to pay the costs of the
defendant Horth, either directly or at the instance of the plaintiff.
[10]
The defendant Horth argues that she should have
her costs of this action throughout, payable by the plaintiff and not
recoverable from the Thomas defendants. In the alternative, the defendant Horth
says that the plaintiff should be denied any costs of prosecuting this action
or, in the further alternative, the defendant Horth says there should be no
costs following discoveries because it ought to have been apparent then that
this action did not qualify under Rule 66 and that there was no liability on
the defendant Horth. Finally, the defendant Horth submits she should be awarded
special costs.
[11]
The trial was set for two days to begin February
9, 2009. On January 19, 2009, all counsel attended a pre-trial conference
before a Master. At the pre-trial conference, counsel for the Thomas defendants
expressed some reservation over whether the trial could be completed in two
days.
[12]
Plaintiffs counsel said that the plaintiffs
case would complete in 5.3 hours, with the plaintiffs evidence taking about
half a day and the rest of the plaintiffs case the plaintiffs wife, his
employer and three doctors for cross-examination would take the balance of
the first day.
[13]
Counsel for the Thomas defendants estimated that
she would need 10.3 hours to put her clients case in, and counsel for the
defendant Horth estimated his clients case would require about 1.5 hours.
Counsel for the defendants also agreed that perhaps one-half hour would be needed
to argue the admissibility of parts of each of the plaintiffs expert reports.
[14]
Plaintiffs counsel advised that the plaintiff
was no longer relying upon the opinion of one of the experts, Dr. Vincent,
because, as counsel put it, his report was redundant.
[15]
Based on this information, the Master concluded
that the trial would likely require four days for hearing. Counsel for the
Thomas defendants agreed, and asked counsel for the plaintiff what her position
was with respect to continuing under Rule 66, given the new trial length
estimate. Counsel for the Thomas defendants suggested continuing under
Rule 68 as an alternative. Plaintiffs counsel did not favour proceeding
under Rule 68 because she said she still had three experts after dropping
Dr. Vincent from her arsenal, and Rule 68 would limit her to one expert, unless
the court ordered otherwise.
[16]
The Master raised the cost implications of
leaving this matter under Rule 66 given the increased trial length
estimate, and plaintiffs counsel confirmed that the plaintiff wished to
continue under Rule 66, with liberty to go up to four days at trial.
[17]
Rather than remove the action from Rule 66,
under subrule (8)(b), the Master summarized the discussion to that point as
follows:
So
it was probably never likely to get to be in the ambit of Rule 66, that is
could be completed by properly motivated to counsel in two days. But its hard
to see now where the downside of all of this is, is (sic) the plaintiff is
content with the cost recovery, assuming hes going to win, then who would
object, and if the defendants, if they think they might lose, in other words
that liability isnt so serious that theres going to be an award and theyre
going to pay and they probably have their cost liability restricted and
probably be a good thing for the defendants too. So I dont know whose ox is
being gored here. But for sure at the way it sits right now, its not a two-day
trial.
[18]
The Masters assessment of the situation was
that three weeks before trial all parties understood and accepted that the
trial would likely take four days and that each, for his or her own reasons,
wished to retain what comfort might remain from the ability to seek the
protection of the maximum costs recovery or exposure available under Rule 66.
None of the parties quarrelled with this assessment at the pre-trial
conference.
[19]
The pre-trial discussion digressed into the
impact of offers to settle on the costs of a four-day trial under Rule 66. The
Master reaffirmed his understanding from counsel for the plaintiff that she
could lead the plaintiffs case, at least in chief, in a day. The Master
concluded by saying, somewhat prophetically as it turned out:
… So I dont
know where were going to go except that, as I say, trial division, they
probably will now just acquiesce in the timing, cause your three weeks out
thatll the schedule will accommodate that for in terms of what we have
booked already, but itll itll be interesting for the trial judge to decide
what to do about costs when this is all said and done. Very interesting. I like
it. We need more law on Rule 66.
And shortly
thereafter:
And maybe the
defendants will apply to get out in the meantime, I dont know.
[20]
None of the parties applied to remove the case
from Rule 66.
Should the plaintiff recover costs under
Rule 66 or Rule 57?
[21]
Rule 66(1) reads:
66 (1) The
object of this rule is to provide a speedier and less expensive determination
of certain actions the trial of which can be completed within 2 days.
[22]
Rule 66 contains its own cost provisions in subrules
(29), (29.1) and (29.2).
66 (29) Unless the
court orders otherwise or the parties consent, and subject to Rule 57(10), the
amount of costs, exclusive of disbursements, to which a party is entitled is as
follows:
(a) if the time spent on the
hearing of the trial is one day or less, $5 000;
(b) if the time spent on the
hearing of the trial is more than one day, $6,600.
(29.1) In exercising its discretion under subrule
(29), the court may consider a settlement offer delivered in accordance with
Rule 37, 37A or 37B whether or not other special circumstances exist.
(29.2) If
tax is payable by a party in respect of legal services, an additional amount to
compensate for that tax must be added to the amount of costs to which the party
is entitled under subrule (29), which additional amount must be determined by
multiplying the amount of costs to which the part is entitled under subrule
(29) by the percentage rate of the tax.
[23]
In Ryan v. Welch, [1999] B.C.J. No. 2524,
1999 CarswellBC 2548 (S.C.), at para. 8, Curtis J. said about Rule 66 when it
was still a pilot project:
The
rule contemplates trials that can be completed within two days. I would
interpret that provision to mean can, with the best efforts of counsel to
litigate the case efficiently having regard to the amount in issue and the
issues involved, be tried within two days. …
[24]
I take this to refer to all counsel acting at
the trial, using best efforts to litigate efficiently.
[25]
The cost provisions of Rule 66 exist to keep the
cost of litigating under the rule relatively low: Reid v. Insurance
Corporation of British Columbia, 2000 BCSC 1334.
[26]
In Smith v. Van Bregt, 12 May 2004,
Victoria 02‑2387 (S.C.), Dorgan J. noted near the end of the first day of
a two-day trial under Rule 66 that the matter had no prospect of completing in
two days, granted a defence motion to remove it from Rule 66, and declared a
mistrial. In her oral reasons, Dorgan J. said at para. 10:
By the
endorsement of her pleadings, the plaintiff opted for the Rule 66 trial
process. That signals that the case is suitable to be tried within 2 days. It
is then incumbent upon the plaintiff to tailor its case to fit into the 2 day
estimate. The defendant has relied on the endorsement. So has the
administration in that the endorsement impacts the timing of other trials.
And later, at para 14:
The interests of
justice and fairness to the parties require that a plaintiff, who elects to
proceed pursuant to Rule 66, must put its case in within 2 days, barring
consent of the parties or reasonably unforeseeable circumstances arising since
the trial agenda was filed and leave of the court.
[27]
Here, it is fair to say that the parties
consented at the pre-trial conference that this trial could take up to four
days and remain under Rule 66.
[28]
In Duong v. Howarth, 2005 BCSC 128,
Macaulay J. dealt with the impact of an offer to settle on costs under Rule 66.
At para. 4 he said:
Following the
enactment of Rule 66, a line of authority established that the court should
only order costs otherwise where justified by special circumstances.
And at para 17:
Under Rule
66(29), the costs of a one day trial are capped at $3,600, exactly $1,200 below
the cap for a two day trial. If one assumes that average pre-trial costs remain
constant for a one or two day case, it is evident that the cap is not designed
to deprive a successful litigant of costs available outside of the rule.
Instead, the rule seeks to displace the need for unnecessary and expensive
taxations in the relatively modest cases that proceed under the rule.
[29]
The caps referred to have now been increased to
$5,000 for a one day trial and $6,600 for a two day trial. The reference to not
depriving a successful litigant of costs available outside the rule has not
been directly pursued in subsequent decisions, although several have departed
from the Rule 66 cap, as will be seen.
[30]
In Anderson v. Routbard, 2007 BCCA 193, 67
B.C.L.R. (4th) 66, the Court of Appeal said at para. 46:
… In my view,
a plain reading of subrules 66(29) and (29.1) makes it clear that the court can
exercise a discretion to depart from the fixed costs set forth in subrule (29)
if there are special circumstances, and an offer under Rule 37 is simply one of
the circumstances in which it may do so. Rule 37 is not given elite status as a
special circumstance and, in some cases, it may be only one of many special
circumstances which the court may consider in determining whether the fixed
costs under subrule (29) should apply. …
[31]
While a court that finds special circumstances
to exist has a discretion to depart from the fixed costs under subrule 66(29),
how that discretion is to be exercised is not so clear. On that question, I
consider the words of Lambert J.A. in Robertson v. North Island College
Technical and Vocational Institute (1980), 119 D.L.R. (3d) 17, 26 B.C.L.R.
225 (C.A.), at para. 24, to be particularly useful:
Once the
threshold question is answered affirmatively then the discretion of the trial
judge arises. Of course, he may exercise it either way. It is a true
discretion. Whether he grants a Bullock order, or not, must depend on his
assessment of the circumstances of the case. In my opinion it is inappropriate
to trammel that discretion by endeavouring to extract principles from those
cases where the discretion was exercised and from those cases where it was
refused. The threshold question must be answered affirmatively; the discretion
must be exercised judicially; and that is all.
[32]
The reference to threshold question in Robertson
relates to the issue then being considered, whether a Sanderson or a Bullock
order should have been made at trial. In spite of the difference in issues,
I consider the principle stated to be applicable here, and bear in mind as I
canvass the authorities cited by the parties that, in this case, if special
circumstances are found to exist, the discretion such a finding confers must be
exercised judicially,
and that is all.
[33]
Trial length has been found to be a special
circumstance in many decisions of this court.
[34]
In Manuel v. Johnstone, 2007 BCSC 2008, a
trial under Rule 66 lasted five and one-half days, and would have gone longer
had the trial judge not intervened. The plaintiffs action was dismissed and
her counsel sought to cap her liability for costs at the maximum under Rule 66.
After characterizing the trial length estimate as ridiculously low, and
noting the argument that previous decisions of this court had held that trial
length could be a special circumstance permitting departure from the costs cap
under Rule 66, the trial judge said at paras. 25-26:
[25]
in my view it would be unjust for
the court to limit the defendant to the costs set out in Rule 66(29)(b) in this
case. I say this for the following reasons. Firstly, the matter did not qualify
to be brought under Rule 66 and it ought to have been clear from the outset
that two days would be insufficient for the trial. Secondly, the case greatly
exceeded the two-day time estimate. Thirdly, the defendant did apply to take
the case out of Rule 66 but did not proceed with that application because the
plaintiff assured her that the case could be completed in two days.
[26] To
award costs at a level above that set out in Rule 66(29) is not punitive. It is
merely a recognition that the rule was never intended to apply to a case such
as the present. That said, I am also of the view that simply applying the rule
of thumb that each day represents $1,200 in fees would also be unjust. The
defendant could and ought to have moved to remove this matter from Rule 66 when
it became apparent that a two-day time estimate was far too low. The plaintiff
has undoubtedly relied to some extent on Rule 66(29) in measuring her downside
exposure in this matter.
[35]
In Kailey v. Kellner, 2008 BCSC 224, 56
C.P.C. (6th) 40, two actions, one commenced under Rule 66 and one under Rule
68, were before the same judge on a pre-trial conference. Counsel for the
defendant in each action applied to remove each from the respective rule so as
to set the two trials for five days. The presiding judge ordered both actions heard
at the same time under Rule 66 and set three days for trial. The trial took
four days, and the plaintiffs damages did not exceed a formal offer to settle
in each of the two actions. When the question of costs came before the trial
judge, he said at paras. 20-21:
[20] This is not a case where there were
simply two, two day trials heard together under the provisions of R. 66. This
was a four day trial in which procedures mandated under R. 68 were imposed.
[21] The
length of the trial itself constitutes, in this case, a special circumstance.
The four days, however, were not necessary solely because there were two
actions. There were significant issues in this case involving an overall
assessment of the evidence as to pre-existing condition, whether there was an
injury at all and the effect if any of multiple events on the plaintiffs
capacity to earn income.
[36]
Reid v. Insurance Corporation of British
Columbia, 2000 BCSC 1334; B.C. Marine Industry
Standard Welfare Plan (Trustees of) v. Dizdarevich, 2004 BCSC 1024, 34
B.C.L.R. (4th) 350 and Duong were cited to the trial judge in Kailey.
Like Duong, the B.C. Marine Industry case was concerned with the
relationship between Rule 66 and Rule 37. The statement in Kailey that
trial length was a special circumstance permitting deviation from the maximum
costs under Rule 66(29) was consistent with the result in Manuel and has
been applied in authorities that followed.
[37]
In Majewska v. Partyka and Obelikpyha,
2009 BCSC 175, special circumstances were found in the complexity of issues,
including pre-existing injuries, sufficient to warrant awarding costs on Scale
B in a Rule 66 trial that took somewhat more than three days to complete. Leave
to appeal has been granted in this case.
[38]
Length of trial was accepted as a special
circumstance, where the trial under Rule 66 lasted some four days, in Schnare
v. Roberts, 2009 BCSC 656, 73 C.P.C. (6th) 173, relying on Kailey, supra.
[39]
In Mariano v. Campbell, 2009 BCSC 1456,
the defendant had tried unsuccessfully on three different occasions to have a
case taken out of Rule 66 so that a jury notice might be delivered. The trial
took four days, and at para. 19 the trial judge observed that it could have
been shortened:
The trial
remained a Rule 66 trial. The trial could have been completed within two days
or approximately two days had both counsel used their best efforts. I see no
reason why Ms. Mariano should be deprived of her costs as a successful
litigant. I find that the length of trial is a special circumstance for
departing from the fixed costs of $6,600 and award her an additional $1,600 for
each day of trial for a total of $9,800, exclusive of disbursements.
[40]
In Henri v. Seo, 2009 BCSC 845, the
evidence concluded in two days, but written submissions were required, which
were not considered a special circumstance warranting costs beyond the cap
under Rule 66. The trial judge there had little by way of authority cited to
her, and referred to this passage in McLachlin & Taylors British
Columbia Practice, 3rd ed. at p. 66-11:
R. 66(29)
ensures that the successful party will not receive any costs for the third or
subsequent day of the trial, consistent with the object, stated in R. 66(1), to
limit the Fast Track procedure to trials which can be completed in two days.
[41]
The authors reference back to Rule 66(1) has
much to commend it, but this passage seems not to have been brought to the
courts attention in some of the decisions already referred to.
[42]
There have been cases where trial length over
two days was either not considered a special circumstance or, if it were,
discretion to award costs beyond the cap was not exercised.
[43]
Bove v. Lauritzen,
2009 BCSC 1698, was a situation where the plaintiff moved at trial to take the
case out of Rule 66, and the trial took a little longer than two days. The
trial judge awarded the cap amount under Rule 66, observing that the trial
could have been completed within the two days but for arguments over
admissibility of expert opinions.
[44]
I note as well that in Anderson the court
said this about Duong at para. 47:
I also agree
with Macaulay J. that the intent of the Rule was to avoid the necessity of a
taxation and that it would frustrate that intent to order a taxation of costs
under the Rule. For that reason, his approach to double costs makes sense.
[45]
Several decisions cited by the parties were not
particularly helpful, as the costs orders appear to have been made without the
trial judge having had the benefit of argument or authorities. These include: Holland
v. Mrus, 2007 BCSC 222; Laroche v. MacPhail, 2007 BCSC 1451; Lopez
v. VW Credit Canada Inc., 2008 BCSC 320; Basi v. Buttar, 2010 BCSC
9.
[46]
It is relevant to keep in mind the purposes of
the costs rules generally. Those purposes have been described as:
1. To deter frivolous actions or defences: Houweling
Nurseries Ltd. v. Fisons Western Corp. (1988), 37 B.C.L.R. (2d) 2;
2. To encourage or deter the conduct of litigants: Skidmore
v. Blackmore (1995), 2 B.C.L.R. (3d) 201;
3. To encourage litigants to settle whenever
possible so as to free up judicial resources for other cases: Bedwell v.
McGill, 2008 BCCA 526; and
4. To achieve some winnowing in the litigation
process by requiring litigants to assess the merits of their cases, and by
discouraging doubtful cases or defences: Catalyst Paper Corporation v.
Companhia de Navegaçᾱo Norsul, 2009 BCCA 16.
[47]
From these decisions I take it that a successful
party may not be limited to costs capped as if the trial took two days if it in
fact took longer, but that what to do about costs should balance the obligations
of all counsel to accurately assess trial length, and to take appropriate steps
as soon as it becomes apparent that a trial will not complete in two days. It
seems that failure to take the appropriate steps might be taken as having
lulled the ultimately unsuccessful party into a false sense of security that
the limited exposure to costs under Rule 66 might reasonably convey.
[48]
Rule 66 is like other rules in that it is open
to manipulation and abuse. In my view, litigants ought to be discouraged from
either or both in cases where it ought to be apparent at the outset, or it
becomes apparent, that a trial cannot complete in two days. There will
always be cases where, in spite of the best efforts of all counsel, they cannot
shoehorn to borrow the word used by Dorgan J. in Smith v. Van Bregt
a case into the two days. There ought never to be a case such as this, where
a Rule 66 trial, conceded to need four days at a pre-trial conference, takes
either nine full days or, as this one did, seven full and four half days.
[49]
The case at bar points up the difficulties that
can result where a process such as that provided in Rule 66, intended to
provide relatively quick, economical access to the courts for those cases that
can be completed in two days, is viewed by litigants as having advantages other
than those intended.
[50]
One of those advantages is to permit litigants
who are less than punctilious with their estimates of trial length to leapfrog
litigants whose trials have been more accurately estimated. Litigants who are
candid with their trial length estimates must wait until a suitably long trial
window is available in the schedule. Two day matters can get a trial date far
earlier than four day matters, and four day matters can get a trial date far
earlier than 11 day matters. By estimating a two day trial length, and
endorsing a case under Rule 66, a litigant can get his or her trial started
sooner, and if the trial does not complete in two days, that litigant can hope
that having started, his or her foot is in the court room door, and that might
get him or her some priority for continuation in the contest for scarce
judicial resources. Unfortunately, that often results in trial schedulers having
to move other matters in order to accommodate the completion of the under-reserved
trial, with corresponding inconvenience and cost to other litigants.
[51]
Additionally, in certain cases, a party may see
a significant tactical advantage in endorsing a case as suitable to be tried
under Rule 66 to avoid trial by jury. A party who seizes upon this advantage to
avoid what appears to be an unacceptable risk if a case is tried by a jury
should be discouraged from conducting a trial under Rule 66 as if the rule had
no length limit and then, if successful, seeking more costs than permitted
under the Rule 66 cap.
[52]
The costs cap may be itself an advantage of Rule
66, in that an unsuccessful partys exposure to costs is limited by the cap
which is really no more than a stated fee maximum, assuming two days of trial,
intended to avoid the further expense of taxation of costs. Although the
authorities canvassed above have shown that if special circumstances are found
in a case, the cap can be supplanted, the same authorities also indicate that
if a trial lasts two days, or perhaps just slightly more, the cap under Rule 66
should not lightly be disregarded unless special circumstances arise through an
offer to settle under Rule 37. See: Laroche v. McPhail, Lopez v. VW Credit
Canada Inc., Henri v. Seo, Bove v. Lauritzen.
[53]
In this case, the exchange among counsel and the
Master at the pre-trial conference shows that none of the parties were willing
to give up the apparent security of the Rule 66 costs cap until, in the
plaintiffs case at least, he knew the outcome of the trial.
[54]
It should not be necessary to say that counsel have
a responsibility to accurately estimate the length of portions of a trial under
their control, including which witnesses each needs to call, and the length of
examination in chief. Each has a responsibility to predict as accurately as
possible the length of cross-examination their witnesses might attract. Counsel
intending to cross-examine have an equal responsibility to correct what he or
she notices is an inaccurate prediction of the length of their
cross-examination.
[55]
Aspects of the trial leading to the gross
disparity between the four-day estimate and the actual trial length included
the plaintiffs election to rely on the opinion of Dr. Vincent considered
redundant at the pre-trial conference and counsels decision to spend 40
minutes examining him in chief.
[56]
Plaintiffs counsel spent about an hour
examining the plaintiffs chiropractor in chief before turning him over for
cross-examination that lasted somewhere between one and one-half and two days,
spread over four different occasions.
[57]
Some time was spent on proving the liability of
the defendant Janis Lyn Thomas. The plaintiff literally did not see what hit
him, so he was not of much assistance. Plaintiffs counsel apparently did not
consider the discovery of each defendant to be sufficient to make the
plaintiffs liability case, so she called a police officer who attended after
the accident, as well as a supervising ICBC adjuster to bring file notes that
included Ms. Thomass report to ICBC after the accident. This led to a voir
dire to inquire into the admissibility of portions of the file.
[58]
The plaintiff had been convicted of attempted
murder arising out of his operation of a motor vehicle. Counsel for the
defendants wanted to use portions of the Court of Appeal file relating to the
plaintiffs appeal from his conviction at trial, which resulted in a voir
dire. It is difficult to see how the existence of that material, or the
trial time it would inevitably consume, would not have been known to counsel,
at least to counsel for the defendants, at the time of the pre-trial
conference.
[59]
It is not my intention at this point to parse
the trial in an effort to allocate responsibility for its excessive length,
although I should note here that the defendants called no witnesses.
[60]
The plaintiff bears sufficient responsibility
for the trial running too long that it is fair and just that his recovery in
costs be kept to the Rule 66 maximum, plus $1,600 per day for three further
days. In making that award, I bear in mind that the defendants concurred in
this trial remaining under Rule 66 in spite of the fact that the estimated
length burgeoned to four days at the pre-trial conference, and I have added one
further day to take into account what I considered to be time that was not used
wisely in the cross-examination of Dr. Parenteau.
[61]
To keep the plaintiff to this level of fees
recognizes that he could have avoided some of the trial length if he had used
the pre-trial procedures more effectively on the issue of liability. As Hall
J.A. said in Catalyst Paper at para. 18: The discovery process should
have also placed this into sharper relief. In this case, closer examination of
the list of documents of the Thomas defendants should have alerted plaintiffs
counsel to the fact that the contents of the adjusters file were not described
with any particularity, and put her on her inquiry. If the inquiry were not
triggered by the list of documents, it should have been triggered by the
answers given by the defendant Ms. Thomas at her discovery. In this way, this
case is distinguishable from Forsyth v. Pender Harbour Golf Club Society, 2006
BCSC 1108, where a defendant which succeeded at trial was deprived of costs
because it had failed to produce clearly relevant documents until just before
trial, in spite of requests made by opposing counsel well before.
[62]
Further, the plaintiff refused to attend a
discovery scheduled by counsel for the defendant Horth to take place January
21, 2009, taking the position that such was an abuse of process. I infer that
cross-examination of the plaintiff by counsel for the defendant Horth was made
longer because defence counsel was deprived of his ability to focus his
cross-examination through examination for discovery.
[63]
As well, a more focused examination for
discovery of each of the defendants by plaintiffs counsel, or use of a notice
to admit, might have made it more difficult for the Thomas defendants to
maintain their denial of liability through trial, or might have allowed counsel
to avoid calling a police officer or Mr. Burrows of ICBC.
Should
the plaintiff be deprived of costs of some issues,
or some disbursements, and should the Thomas defendants
recover costs of some issues?
[64]
The Thomas defendants point to the range of
damages the plaintiff sought in final argument between $255,000 and $355,000,
and the damages awarded of $42,196.69, and say the plaintiff has not
substantially succeeded at trial. These defendants rely on Young v. Young,
2009 BCSC 1529, where the court said: it is well-settled that substantial
success is determined by measuring the trial outcome with the parties position
at trial. I note that in Chohan v. Lawrence, 28 January 2009, New
Westminster M91719 (S.C.), the court says at para. 13: It is my
understanding of the law that apart from the effect of any offers to settle,
the plaintiff should not be denied costs as a result of the court awarding a
lesser sum of damages than claimed by the plaintiff.
[65]
Rooney v. Chan
(1992), 76 B.C.L.R. (2d) 186, cited by the Thomas defendants, was decided in
circumstances similar to those in this case. In Rooney, the plaintiff
had led evidence and argued for damages between $382,000 and $465,000. He
recovered some $69,150.11 in damages, only $232.97 more than the defendants
final pre-trial settlement offer.
[66]
The plaintiffs comparative lack of success
there was held to be a factor to be considered in the costs award, but not
determinative of the issue. The court said at para. 9:
The Court has
the discretion to depart from the normal rule that costs follow the event. This
discretion will often be exercised against the plaintiff where the plaintiff
has exaggerated the extent of his injuries and his or her credibility has been
questioned. However, irrespective of a finding of credibility against the
plaintiff, the degree of success test may still be applicable. Its
application may depend upon (a) the extent to which the claims advanced and the
offers to settle on the plaintiffs behalf exceed the eventual award; (b)
whether the amounts paid into Court approach the eventual award: (c) whether a
discernible issue or head of damages has been decided against the plaintiff;
(d) whether it was reasonable to raise the particular issue; and (e) where the
predominant issue at trial is the quantification of damages.
[67]
The claims advanced here for past loss of
earnings and lost future earning capacity far exceeded the amounts awarded, for
the reasons set out in paras. 64 to 73 of the reasons for judgment in King
v. Horth, 2009 BCSC 1114.
[68]
The Thomas defendants offered $30,000 plus costs
and disbursements before trial. Comparatively speaking, the plaintiff recovered
damages that were closer to one-half than one-third more than the amount
offered.
[69]
The only discernible issue on which the
plaintiff did not succeed at all was his claim for cost of future care, and the
amount claimed was relatively modest, at $17,600. As well, little time was
spent on this head of damage at trial, beyond that which would have been spent
in any event proving the special damages that were awarded the plaintiff, and
upon which the future care claim was based. It was reasonable in my view for
the plaintiff to raise this issue, notwithstanding his lack of success.
[70]
While most of the time at trial was taken up
with damages, the liability problem faced by the plaintiff was significant, and
remained so until the end of the trial.
[71]
In my view it would be unjust to deprive the
plaintiff of any more fees than I have already taken away in my ruling on the
Rule 66 costs issue, or to award costs of some issues to the Thomas defendants.
[72]
As to disbursements, the Thomas defendants argue
that I should disallow disbursements for Dr. Coburns report and attendance,
two of Dr. Parenteaus reports that were not produced in evidence, Dr.
Vincents report and attendance (referring to counsels characterization of
this evidence as redundant at the pre-trial conference), and the costs
relating to the economists report.
[73]
Registrars are skilled at assessing
disbursements after a trial, and rarely need judges to tell them how to do
their work. I see nothing in the submissions on this point that would cause me
to consider telling a Registrar of this Court how to do his or her work, and
decline to involve myself in questions of disbursements, unless such questions
are referred back to me by a Registrar.
Who should pay costs to the defendant
Horth?
[74]
The threshold question here is,
was it a
reasonable thing for the plaintiff in his action against a man who ultimately
turns out to be in fact the wrong-doer to join the other defendant in order
that the matter might be thoroughly threshed out? See Besterman v. British
Motor Cab Company Ltd., [1914] 3 K.B. 181 (C.A.), adopted in Robertson
v. North Island College (1980), 119 D.L.R. (3d) 17, 26 B.C.L.R. 225 (C.A.).
[75]
Here, the plaintiff points to the pleading of
the defendant Horth that his negligence caused or contributed to the collision,
and to his injuries and losses, and says that pleading squarely raises the risk
of partial recovery under the Negligence Act, R.S.B.C. 1996, c. 333, as
applied in Leischner v. West Kootenay Power and Light Company Limited (1986),
24 D.L.R. (4th) 641, 70 B.C.L.R. 145 (C.A.).
[76]
The Thomas defendants say they pleaded a bare
denial of liability, without pleading any contributory negligence on the part
of the plaintiff, and if the claims against Horth had been discontinued, there
would have remained no pleading on which liability could have been found
against someone other than either the plaintiff or the Thomas defendants, and
therefore there would have been no risk of partial recovery.
[77]
I agree with counsel for the Thomas defendants.
In Wells v. McBrine (1989), 54 D.L.R. (4th) 708, 33 B.C.L.R. (2d) 86
(C.A.), the Court of Appeal makes it clear that, although a non-party to an
action may be found partially at fault, and thus deprive a partially negligent
plaintiff of a portion of his or her recovery, that can only occur if the issue
of the non-partys potential fault is raised by the pleadings, so that the
plaintiff is not caught by surprise, and the fault of the non-party can be
canvassed in evidence and argument.
[78]
I need not plumb the depths of the complexities
that can arise under the Negligence Act in this case, because I consider
the answer to this point to lie in the circumstances. The plaintiff did not
know what hit him. The only witnesses to the accident who did know how he came
to be hit were the defendants Horth and Ms. Thomas, and neither of them
were prepared to admit the facts required to give comfort to the plaintiff that
liability could be established at trial.
[79]
In those circumstances, it was reasonable for
the plaintiff to join the defendant Horth in the action, and, in face of the
continued refusal by the Thomas defendants to admit the facts necessary to
assure the plaintiff that his case against them was solid, it was reasonable to
continue the claims against the defendant Horth.
[80]
As to whether the defendant Horths costs should
be paid by the Thomas defendants (Sanderson order) or the plaintiff who
can then claim those costs from the Thomas defendants (Bullock order), I
have been referred to Towson v. Bergman, 2009 BCSC 978, where, at para.
85, Gray J. says:
It is
possible for an order to be made which entitles the plaintiff to recover only
some of the costs for which the plaintiff is liable to the successful
defendant. For instance, the plaintiff may recover costs up to the point where
he or she ought to have recognized that the case against the successful
defendant could not succeed …
[81]
In Lee (Guardian ad litem of) v. Richmond
Hospital Society (c.o.b. Richmond Hospital), 2002 BCSC 862, 3 B.C.L.R. (4th)
91, Wong J. says at para. 58:
A
further consideration for the Court when exercising its discretion is whether
it was appropriate for a plaintiff to maintain his or her action against the
successful defendant, where it becomes apparent during the course of litigation
that the claims against that party have no reasonable prospect of success. An
unsuccessful defendant ought not to bear the costs of a successful defendant
where it was clear that the action against the latter had no reasonable
prospect of success …
[82]
Here, I find that it did not become apparent
that the claims against the defendant Horth had no reasonable prospect of
success, or that the plaintiff ought not reasonably to have recognized that,
until during the trial. The Thomas defendants failed to properly describe the
documents over which they were claiming privilege. A proper description might
have alerted plaintiffs counsel that there was an admission worth pursuing, by
way of application to compel production. Plaintiffs counsel took no objection
before trial to the lack of proper description of documents over which
privilege was asserted. Instead, Mr. Burrows was subpoenaed to trial, with the
ICBC file, and it was only then that reasonably prudent counsel should have
known the risk of discontinuing against the defendant Horth was manageable.
[83]
In the circumstances of this case, I order that
the costs of the defendant Horth be paid by the Thomas defendants.
[84]
What costs should the defendant Horth recover?
[85]
The defendant Horth, by her silence, acquiesced
in the wholly inaccurate trial length estimate at the pre-trial conference, and
did not apply to remove this trial from Rule 66 when it ought to have been
obvious that even the expanded four day length was wholly inadequate.
[86]
The defendant Horth shall have her costs based
on a four day trial under Rule 66, that is $6,600 for the first two days, plus
$1,600 for each of the next two days, plus disbursements.
[87]
Should the plaintiff be denied all costs, or
costs after discovery?
[88]
Counsel for the defendant Horth argued that his
client ought not to have been sued in the first place, and that the plaintiff
should have discontinued his claims against the defendant Horth long before
final submissions.
[89]
The written argument puts it this way:
Ms. Horth
submits she is entitled to her costs throughout. However, in recovering those
costs, the Plaintiff should not be rewarded for conduct that inappropriately
lengthened the trial and required Ms. Horth to participate to the end.
[90]
One main complaint advanced by the defendant
Horth is that the plaintiff was unwilling to discontinue against her unless the
Thomas defendants admitted liability, a tactic the defendant Horth labels as
improper. Another argument advanced by the defendant Horth relates to the
length of trial, and lack of effort on the part of plaintiffs counsel to trim
the plaintiffs case to fit within the estimated trial length.
[91]
The defendant Horth has two legitimate concerns
at the costs stage: the first is her entitlement to costs, which is not
challenged by the plaintiff; the second is whether her costs should be based on
Rule 57 or on Rule 66. Any other argument raised by Horth simply reinforces the
plaintiffs complaint that the defendants are acting in concert when it suits
them, and claiming to be separate when it suits them, all on the instructions
of a common insurer/instructing principal.
[92]
This complaint derives some force from the
nature of the arguments made by the defendant Horth on this costs application.
[93]
For the reasons I have given on the question of
who should bear initial responsibility for Horths costs, I do not accede to
the first submission. In my view it was reasonable to have joined the defendant
Horth. As to the rest of the submissions on this point, they appear to me to be
intended more to assist the arguments of the Thomas defendants.
[94]
Is the defendant Horth entitled to special
costs?
[95]
The defendant Horth has argued that she should
be entitled to special costs because the plaintiff maintained his claims
against her long after he should have known they would fail, and because the
plaintiff disregarded Rule 66 trial length provisions, his obligation to
disclose documents before trial, his counsels failure to disclose
correspondence with Dr. Parenteau, and the plaintiffs refusal to appear at
discovery.
[96]
This submission has no merit. I have dealt with
the trial length, and pointed to the shared responsibility for that. There is
no reprehensible conduct warranting special costs here.
[97]
As to the document issue, there is nothing here
that would justify special costs. This issue, as well as the discovery
controversy, while they may have provided good grounds for a pre-trial
application to force the issue, are not the kind of conduct out of which
special costs are made.
R.T.C.
Johnston, J.
The Honourable Mr. Justice Johnston