IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100804

Docket: M57751

Registry:
Nanaimo

Between:

Sarah Tomei

Plaintiff

And

Samuel Kelly

Defendant

Before:
The Honourable Lynn Smith

Reasons for Judgment
on Costs

[1]          
This action for damages for personal injuries suffered in a motor
vehicle accident was conducted under Rule 66 of the Rules of Court,
B.C. Reg. 221/90, effective September 1, 1990, O.C. 1039/90.  The
Rule is headed “Fast Track Litigation” and was introduced in 1998 to provide a
cost-effective process for trials that could be completed in two days.  The
plaintiff, Sarah Tomei, elected to proceed under Rule 66 in this case and
the defendant did not object.

[2]          
With respect to costs, Rule 66 states as follows:

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.

[3]          
In a recent decision of the Court of Appeal (Majewska v. Partyka,
2010 BCCA 236), Neilson J.A. reviewed the authorities and concluded that
the discretion afforded trial judges under Rule 66(29) is circumscribed by
the objectives of Rule 66, to provide speedy, less expensive trials in
appropriate cases.  She stated at para. 37:  “Those objectives are best
served by awarding lump sum costs, calculated by reference to the amounts in
R. 66(29).”  The Court of Appeal in Majewska accepted that an
appropriate approach where a trial exceeds two days is to take $1,600 as the
appropriate amount of costs for each day of trial and $3,400 as the additional
amount entailed in pre-trial preparation.  It derived those amounts from the
figures set out in Rule 66(29)(a) and (b).

[4]          
As to the effect of settlement offers, the court is specifically given
discretion under Rule 66(29.1) to take such offers into account.

[5]          
The trial in this matter occupied 4.5 days.

[6]          
The defendant made three offers of settlement.  The first offer was made
on April 6, 2010, and was for $40,000.  A second offer was made on
May 10, 2010, for $50,000.  Counsel for the defendant states that it is
not her client’s intention to rely on the May offer with respect to arguments
regarding costs.

[7]          
The trial commenced May 19, 2010 and adjourned on May 21, to
be completed July 12 and 13.  During the break in the trial, the defendant
made a third formal offer to settle, on June 9, 2010, for $80,000.

[8]          
Reasons for Judgment were delivered orally on July 13, 2010,
awarding the plaintiff a total of $51,037.

[9]          
The plaintiff’s position is that the extension of the trial beyond the
two days contemplated in Rule 66 is a “special circumstance” justifying a
departure from the usual costs scheme.  The plaintiff seeks costs of the trial
in the sum of $10,600, comprised of $1,600 times 4.5 days of trial ($7,200) plus
$3,400 for pre-trial preparation.

[10]       
The defendant’s position is that because the defendant’s June 9 offer
to settle was for an amount greater than that awarded at the end of the trial,
the plaintiff should have her costs only up to the day of that offer.  Further,
the defendant’s position is that the defendant should have his costs for
July 12 and 13 and that his costs should be doubled.

[11]       
Rule 37B provides as follows:

37B  (4)  The court may consider an offer to settle when
exercising the court’s discretion in relation to costs.

(5)  In a proceeding in which an offer to settle has been
made, the court may do one or more of the following:

(a)  deprive a party, in whole or
in part, of any or all of the costs, including any or all of the disbursements,
to which the party would otherwise be entitled in respect of all or some of the
steps taken in the proceeding after the date of delivery of the offer to
settle;

(b)  award double costs of all or
some of the steps taken in the proceeding after the date of delivery of the
offer to settle.

(c)  award to a party, in respect
of all or some of the steps taken in the proceeding after the date of delivery
or service of the offer to settle, costs to which the party would have been
entitled had the offer not been made;

(d)  if the offer was made by a
defendant and the judgment awarded to the plaintiff was no greater than the
amount of the offer to settle, award to the defendant the defendant’s costs in
respect of all or some of the steps taken in the proceeding after the date of
delivery of the offer to settle.

(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 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.

[12]       
Counsel for the plaintiff questioned whether Rule 37B provides
jurisdiction to grant double costs to a defendant and referred to the fact that
Rule 37 (previously in effect) allowed for double costs only where the
case was dismissed.  I note that Rule 37B(5)(d), which seems to apply to
circumstances such as those in this case, states that the court may give the
defendant costs, but does not refer to double costs.  However,
Rule 37B(5)(b), referring to double costs, is not limited in its
generality.

[13]       
It is not necessary for me to address this issue further since
I have concluded that this is not a case in which I should exercise
discretion to award the defendant double costs if I do have such discretion. 
In the context of this case, such an award would be punitive.  Further, taking
into account the factors specified in Rule 37B(6), including the date at
which the offer was made and the relative financial circumstances of the
parties, I do not find it appropriate to award the defendant costs for the 1.5
days of trial following the offer.  I do, however, deprive the plaintiff of her
costs for those days since the June 9 offer was one that ought reasonably
to have been accepted by the plaintiff.

[14]       
The plaintiff will have her costs in the total sum of $8,200.

“Lynn Smith J.”