IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100428

Docket: M101344

Registry:
New Westminster

Between:

David Pearlman

Plaintiff

And:

Atlantic
Trading Company Ltd. and Rebecca Lee Spence

Defendants

–
and –

Docket: S064665

Registry:
Vancouver

Between:

David Pearlman

Plaintiff

And:

The Insurance
Corporation of British Columbia/ICBC and Kelly Winn

Defendants

Before:
The Honourable Madam Justice Gropper

Oral Reasons for Judgment

In
Chambers

THE COURT: The defendants apply to dismiss Mr.
Pearlman’s appeals of Registrars assessments of costs in two actions:  M101344,
New Westminster Registry and S064665, Vancouver Registry.

Background

[1]            
Mr. Pearlman commenced these actions relating to claims arising from a
motor vehicle accident which occurred in November 2004.  The first action is a
tort claim for injuries arising from the accident, and the second action is a negligence
claim against the Insurance Corporation of British Columbia (ICBC) based on his assertion that ICBC had requested a medical report from his family doctor
whose authorization to provide the report had been revoked by the plaintiff.

[2]            
The tort claim was heard by Mr. Justice Rice with a jury in September 2009. 
The jury concluded that Mr. Pearlman’s injuries were not caused by the accident
and his claims were dismissed.  The court made an order for costs.  A bill of
costs was presented by the defendants in that action and the matter came for
assessment before Registrar Blok in 2009.  Registrar Blok assessed the costs
payable by the plaintiff in the approximate amount of $34,000.

[3]            
The negligence claim was heard by Mr. Justice Smith with a jury in April
2009.  The defendants applied to dismiss the plaintiff’s claim on the basis of
no evidence, which the trial judge upheld.  He dismissed the plaintiff’s
action and made an order for costs.  The assessment of the defendant’s costs
came before Registrar Sainty in August and September 2009, who assessed costs payable
by the plaintiff of approximately $32,000.

[4]            
Mr. Pearlman filed notices of appeal from the registrars’ assessments of
costs.

Position of the Parties

The Defendants’ Submissions

[5]            
The defendants in both actions seek to have Mr. Pearlman’s notices of
appeal dismissed.  The positions of the defendants are, first, that Mr.
Pearlman has undertaken the wrong procedure to proceed with an appeal from the
registrars’ assessments.  He is required to proceed by way of notice of motion
in accordance with Rule 57(33) of the Rules of Court.  The defendants
say that Mr. Pearlman has not taken any steps to file the proper document to
pursue his review of the registrars’ assessments; and second, that Mr. Pearlman
has not taken any steps to pursue his appeal from the registrars’ assessments
and therefore they should be dismissed for want of prosecution.

[6]            
In respect of the assessments by Registrars Blok and Sainty, the
defendants point out that:

1.       There has been a 14-month period since the assessment
of Registrar Blok and approximately one year since the assessment by Registrar
Sainty but Mr. Pearlman has not provided any explanation for his delay in
proceeding with his appeals.

2.       The court rarely interferes with a
registrar’s assessment unless there is an error in principle.  None has been
identified by Mr. Pearlman in his notice of appeal.

3.       There is no merit in Mr. Pearlman’s appeal
from the assessment of Registrar Blok and he is unlikely to succeed.

[7]            
Ultimately, the defendants argue that it is in the interests of justice
that the matter of costs in these actions be brought to an end.

The Plaintiff’s Submission

[8]            
Mr. Pearlman makes the following response:

1.       The procedure which he has undertaken is the
correct procedure, and he followed the advice of the New Westminster Registry
in preparing the notices of appeal in these matters.

2.       Mr. Pearlman has not engaged in any delay in
proceeding with these appeals.  He has proceeded to the Court of Appeal and the
Supreme Court of Canada.  Many applications have been made to the court, and
the Supreme Court of Canada is presently considering his application for leave
to appeal in both matters.  He says he anticipates a successful result from the
Supreme Court of Canada’s consideration of his leave.

3.       Mr. Pearlman asserts that in regard to
Registrar Blok’s assessment, the Registrar allowed disbursements for experts
which were not called as witnesses by the defence in the tort claim; that
Registrar Blok allowed for disbursements for photocopies which were both
excessive and unproven, and that Registrar Blok should have required Mr.
Critchley, counsel for the defendants, to give evidence in that proceeding
under oath.

4.       In respect of Registrar Sainty’s assessment,
Mr. Pearlman says that Registrar Sainty had no jurisdiction to undertake an
assessment as there was no entered order dismissing this action before Mr.
Justice Smith and therefore the taxation is a nullity.  He also says that
Registrar Sainty erred in allowing costs of approximately $12,000 in respect of
disbursements for Dr. Goldstein.  Dr. Goldstein was a dentist who prepared a
report for the defendants.  Mr. Pearlman challenges a disbursement allowed in
respect of his report and also in respect of Dr. Goldstein’s bill for the
cancellation of his appearance in court.

5.       Mr. Pearlman says further that Registrar
Sainty’s assessment is exorbitant and without proof.  He also criticizes
Registrar Sainty’s decision to disallow the plaintiff’s application in the
hearing to call Dr. Goldstein as a witness.

The Defendants’ Reply

[9]            
The defendants say that the plaintiff’s assertion that he is proceeding
in court with these appeals is incorrect, that the appeals that Mr. Pearlman
has proceeded with relate to his appeals in the tort and negligence actions and
not in relation to his appeal concerning the assessment of costs.

[10]        
In respect of the position that Registrar Sainty did not have
jurisdiction, the defendants point out that while Registrar Sainty did not have
a copy of the entered order, the parties agreed that there was an order for
costs made by Mr. Justice Smith and agreed to the form of the order and Registrar
Sainty had a copy before her.  She did not have a filed copy of the order of
Mr. Justice Smith as it had not been returned by the registry.  That was due to
delay on the part of the registry and, in part, a delay in Mr. Critchley’s
office in filing the order for entry.

Decision

[11]        
I find that the plaintiff’s notices of appeal are not the proper
procedure to be undertaken to review the registrar’s assessment.  I refer to
the decision of Mr. Justice Finch (as he then was) in Xerox
Canada Inc. v. Sweany, [1990] B.C.J. No. 1234, 42
C.P.C. (2d) 101, where, at the second paragraph at p. 2 of the decision,
the court specifically states: “A review of taxation is properly brought by way
of notice of motion under Rule 57(26).”  That rule is now Rule 57(33), which
provides:

A party who is dissatisfied with
a decision of the registrar on an assessment may, within 14 days after the
registrar has certified the costs, apply to the court for a review of the
assessment, and the court may make an order as it thinks just.

[12]        
The procedure undertaken by Mr. Pearlman in filing notices of
appeal is a an error but as Xerox notes at paragraph 3 of p. 2, the failure of a party to proceed under the correct Rule is an error of
form, rather than of substance and I have the discretion to grant relief
against such an error by reason of Rule 2(1) which provides:

Unless the court otherwise
orders, a failure to comply with these rules shall be treated as an
irregularity and does not nullify a proceeding, a step taken or any document or
order made therein.

[13]        
In respect of the defendants’ application to dismiss the notices of
appeal for want of prosecution, I agree that the test which I am to apply is
the same as that which is applied by the Court of Appeal when it is considering
an application by an appellant to reactivate an appeal which has been moved to
the inactive list based on the fact that the appellant took no steps upon it
within a year of the notice of appeal having been filed.

[14]        
In Murphy v. Wynne, 2008 BCCA
26, the court stated:

[19]      Section 25 of the Court of Appeal Act governs
inactive appeals.  There is no rigid test on an application to reinstate.  The
overriding issue has been said to be whether it is in the interests of justice
to grant the application: Kar Recovery Ltd. v. KDA, 2004 BCCA 503. 
Factors which have been considered by the Court in removing a case from the
inactive list are the extent of the delay, any explanation for the delay, the
existence of prejudice arising from the delay, and the likelihood of success on
appeal.

[20]      The applicant bears the
onus of establishing a good reason for reactivating the appeal…

[15]        
I conclude that there has been a delay by the plaintiff in regard to
both appeals.  I am satisfied that there have been no steps taken on his
appeals from the assessment of the registrars, even if I assume that that is
the proper procedure.  Mr. Pearlman’s position is that he had not delayed and
thus he has not provided any explicit explanation provided for a delay.  While
Mr. Pearlman may have taken steps with regard to his appeals in the underlying
tort and negligence claims, this is insufficient to address why the plaintiff
has not proceeded with any steps in regard to pursuing a review of the registrars’
assessments.

[16]        
I appreciate Mr. Pearlman’s point that if he is successful in his
appeals on the underlying actions, it may affect whether or not he has to pay
costs at all.  However, that does not address his lack of progress with regard
to these notices of appeal.

[17]        
The existence of prejudice to the defendants is clear:  The defendants
have a valid and subsisting order for costs in both these actions and have
proceeded to a registrar’s assessment and certification of those costs.  They
are entitled to pursue payment of the costs as assessed.

[18]        
Regarding the merits of the appeal, I am mindful that courts rarely
intervene in the assessment of registrars unless there is an error in
principle.

[19]        
In respect of Registrar Blok’s assessment, I can consider that he
undertook a careful review of the bill of costs presented to him as
demonstrated by his conclusion that the bill should be reduced by approximately
$10,000.  The plaintiff simply disagrees with the result.  He says that there
were costs for disbursements for reports for experts who were not called in
evidence, that the disbursements for photocopies were exorbitant, and that Mr.
Critchley was not required to give evidence under oath.  I do not find that any
of those disagreements constitute a meritorious appeal.  The defendants are
entitled to claim for costs and to receive costs for experts who are not called
as witnesses, or not required to be called as witnesses; photocopy
disbursements were considered by the registrar and approved, and Mr. Critchley
was not required to give evidence under oath in a registrar’s hearing.

[20]        
On that basis, I conclude that Mr. Pearlman’s notice of appeal in
respect of Registrar Blok’s assessment is unlikely to succeed.

[21]        
In respect of Registrar Sainty’s assessment, the plaintiff says, first
and foremost, that she had no jurisdiction to consider the bill of costs, and
he says that the assessments which were made of costs were excessive and
without proof.

[22]        
I am satisfied that Registrar Sainty had jurisdiction to consider the
defendants’ bill of costs.  She was aware that the court had ordered that costs
were payable by the plaintiff to the defendants.  She had a copy of the form of
order which had been agreed to, and it was only the entered copy of the order
which was not before her. I am satisfied that she had jurisdiction based on the
court’s order that costs were payable by the plaintiff and that the form of
order was agreed to.  There was a delay in receiving the entered order.  That
is insufficient, in my view, to oust her jurisdiction to proceed with the
assessment.

[23]        
In respect of the disagreements by the plaintiff regarding specific
matters before Registrar Sainty, I reach the same conclusion as I did in
respect of his disagreements with the assessment of Registrar Blok; this does
not mean that the appeals are meritorious.

[24]        
It is in the interests of justice that the proceedings before the courts
conclude and specifically these proceedings related to the orders for costs
payable by the plaintiff in these two actions.  The Rules require the parties
to proceed without undue delay, and in this case, I have specifically found
that Mr. Pearlman has engaged in unexplained delay.  He has not satisfied the
onus of establishing a good reason why these appeals should proceed.

[25]        
I therefore dismiss the notices of appeal of Registrars Blok and
Sainty’s assessments filed by the plaintiff in both actions.  For
clarification, I also dismiss Mr. Pearlman’s application for review of the
assessments.

 [SUBMISSIONS]

[26]        
THE COURT:  I do not have an application for a stay of proceedings, and
in any event, there is no stay in this matter.  I have dismissed the notices of
appeal, so there is nothing for me to stay.  Mr. Pearlman’s comments on how the
procedure ought to occur do not require my consideration.  Mr. Critchley
suggested that if Mr. Pearlman wishes to seek an order that the defendants not
proceed with enforcement of their costs order, he is free to do so.  There is
no such application before me.

[27]        
The defendants are entitled to their costs of this application.

“Gropper
J.”