IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120228

Docket: M89778

Registry:
Kelowna

Between:

Andrea R. Morgan

Plaintiff

And

BC Transit,
FirstCanada ULC,
and Victor James Hakanson

Defendants

Before:
The Honourable Mr. Justice Betton

Oral Reasons for Judgment

[1]            
THE COURT: This is my decision which was on costs, which was
reserved to today’s date. The portions of the defendants’ application that
remain to be decided relate to costs, first, with respect to an application for
costs thrown away for an examination for discovery for which there was an
appointment taken out for December 15, 2011, that the plaintiff did not attend;
and second, costs in respect of this application. The plaintiff, the
application respondent, seeks dismissal of the application with special costs.

[2]            
By way of background, the action is in respect of a damages claim
arising from a motor vehicle accident that occurred January 29, 2009. The
action was commenced December 20, 2010. In the response filed January 13, 2011,
liability was admitted. A notice of trial was taken out setting the trial for December
3, 2012. That was delivered in late November 2011. In September of 2011, the
defendants began the process of setting an examination for discovery of the
plaintiff. Defence counsel provided dates in November and December. November 29
was set by consensus. By agreement, that date was moved to December 1. The
December 1 date was adjourned again at the plaintiff’s request.

[3]            
There is some dispute about what alternative dates were proposed or
discussed at that time. The defendants say that the plaintiff proposed some
dates in December and early January. The plaintiff says that the defendants had
proposed January dates, but the defendants said — sorry, that the plaintiff
said availability would be late January. These discussions occurred November 8,
2011. The issue of the discovery date was not revisited again until
approximately November 28, 2011. There were communications by letter between
counsel and by phone between their respective assistants.

[4]            
The defendants’ letter of December 1, 2011, and the plaintiff’s of
December 2, 2011, set the stage for the issue that has now come before me.
Those letters are attached as exhibits “B” and “C” to affidavit number 1 of
Brittany Walks filed in respect of this application. In the December 1 letter
from Mr. Goldstone to Mr. Doyle in the final paragraph, he notes:

You[r] assistant refused to
provide us with any dates in December 2011 so I scheduled the examination for
discovery for December 15, 2011 – a date when you
previously indicated that the plaintiff would be available. I would consider
adjourning the discovery to another date in December more convenient for you
and your client (although I am unavailable on the 8^th, 16^th,
and 21^st). Otherwise, I am instructed to proceed with the discovery on
December 15, 2011.

[5]            
Mr. Doyle’s correspondence of December 2, 2011, he says, among
other things:

We seem to be agreed that dates in mid-December and early
January were discussed although I am quite sure I told you that I would have to
check with my client first. If I suggested early January, it would have been a
mistake because I have a 9 day trial commencing January 3, 2012.

In the three weeks following our
conversation, I arranged a vacation for the second half of January. I have a
three day trial starting February 1, 2012 and a mediation on February 6, 2012.
This is why my assistant gave you the date of February 8, 2012.

He goes on and says:

I will also let you know if the
January trial settles, although that seems unlikely at the moment. Yesterday, I
advised that I have another commitment on December 15, 2011.

In that letter, he also
notes at the beginning:

For the reasons that follow, we
will not be attending the Examination for Discovery, scheduled for December 15,
2011 despite our objection.

[6]            
As indicated, the plaintiff did not attend at the December 15th
discovery. Exhibit I to affidavit number 1 of Anna Loverro filed by the
plaintiff on this application is a letter of December 19th from Mr. Doyle
to Mr. Goldstone which reads:

Further to my letter of December 2, 2011, I advised that I
would let you know if my January trial (9 days commencing January 3, 2012)
settles. It has now settled.

Subject to my client’s
availability, and your own, I can be available for discovery in the first half
of January. Please contact our office if you want to make arrangements.

[7]            
This application was filed on January 18, 2012. The relief or the orders
sought as set out in part 1 of the application are as follows: that the
plaintiff’s action be dismissed with costs to the defendants; in the
alternative, that the plaintiff attend the examination for discovery on March
1, 2011; that the plaintiff pay the costs thrown away for the examination for
discovery previously scheduled for December 15, 2011; and last, that the costs
of this application be paid by the plaintiff in any event of the cause.

[8]            
This application proceeded and on the date that it was to proceed — or
it was set for February 13 and, on that date, the defendants advised that they
were no longer seeking a dismissal of the plaintiff’s claim. After hearing
submissions and reserving decision, I told counsel I expected that they will
have either completed the examination for discovery of the plaintiff or
scheduled it on a mutually acceptable date before I deliver this decision, and
counsel, I am assuming that has occurred?

[9]            
MR. GOLDSTONE:  Yes, My Lord, we had agreed upon a date of March
12th for the discovery and then my friend subsequently adjourned again to —
now it is set for March 23rd.

[10]        
THE COURT:  All right. So that is now set for March 23rd.

[11]        
MR. GOLDSTONE:  It is set for March 23, My Lord.

[12]        
THE COURT:  Thank you. The defendants — now I turn to my analysis of
these issues.

[13]        
The defendants are quite correct in pointing out that Rule 22-7 provides
for an appointment to be taken out that is binding upon a party. Indeed, the
ability to do so is necessary and the importance of that is reflected in the
availability of severe consequences for non-compliance including dismissal of a
claim or a response. I reference Rule 22-7(5).

[14]        
Obviously, the system would be challenged if appointments were routinely
taken out without consultation with opposing parties and applications for
dismissal followed non-attendance at such appointments. There is a balance that
requires considered utilization of Rule 22-7(5). Circumstances must justify the
application. Those who have an obligation to submit to an examination for
discovery must cooperate reasonably in allowing the examinations for discovery
to occur. Indeed it is a relatively unusual application and quite rare that
such a severe remedy is granted. The reasons for this are numerous and most are
self-evident. Most parties are represented and counsel are well aware of their
own and their clients’ obligations. They make accommodations appropriately and
reasonably to assist in achieving the objectives of the Rules. Even
those who are not represented understand that procedural rules exist, and are
to be followed, and there are consequences for failing to do so.

[15]        
I note in this case, there is no evidence before me indicating that
there was any particular urgency to having the examination for discovery of the
plaintiff concluded by the end of December. The trial date, as I noted, is set
for December of 2012. When the December 1 date was adjourned on November 8,
there was some discussion, but nothing done to formally set the examination for
discovery until November 28, approximately three weeks later, when the issues
quite quickly emerged. In this case, it is of significance that plaintiff’s
counsel advised on December 18, approximately one month before this application
was filed, that he had become available to have the examination for discovery
of the plaintiff concluded in early January 2012. That is now some two months ago.

[16]        
There are cases when parties with or without counsel either use the Rules
or ignore them to frustrate another’s legitimate efforts to prepare their case.
In my view, this is not one of those cases. There are also cases where the Rules
are used in ways which serve to defeat the broader objectives as described in
the Rules of having cases proceed in an efficient and fair way. In all
of the circumstances, it is my conclusion that the defence in these
circumstances was overly aggressive in its utilization of this Rule and making
an application to have the action dismissed with costs to the defendants; pressing
to set the date on December 15 without consultation or without agreement was
not necessary. Of most significance is the fact that before this application
was set, plaintiff’s counsel had advised that they were now available to
accommodate the examination for discovery occurring in early January. That
discovery would have long since been concluded, rather than now being set in
March and this application having had to proceed.

[17]        
In all of the circumstances, I decline to grant any costs thrown away to
the defence for the examination for discovery of December 15, 2011.

[18]        
With respect to the costs of this application, in the circumstances, the
defence will not have its costs of this application. The plaintiff will have
its costs.

[19]        
The plaintiff seeks to have special costs awarded given the history to
which I have alluded. Authorities have been provided to me in support of
this. I will reference only one of those and it is —

[20]        
MR. GOLDSTONE:  I am sorry, My Lord, you just — I got it double —
it just got muffled there just in the last sentence you said.

[21]        
THE COURT:  I am sorry?

[22]        
MR. GOLDSTONE:  Your voice was muffled just in the last sentence
that you spoke.

[23]        
THE COURT:  All right.

[24]        
MR. GOLDSTONE:  You had referred to the authorities provided and
then it got muffled.

[25]        
THE COURT:  All right, I will repeat that. I have been provided with authorities
by counsel in respect of this application. I will refer to only one of those in
dealing with the question of whether special costs should be awarded. That is
the recent decision of Associate Chief Justice MacKenzie, as she then was, in Wood
Atkinson v. Murphy, 2011 BCSC 1766. In paragraph 21 of that decision,
Justice MacKenzie reviews principles in circumstances in which special costs
might be awarded and specifically makes reference to the decision of Madam
Justice Wedge in FFS HK Ltd. v. P.T. 25 (Ship), 2011 BCSC 1418. The
types of conduct that are referred to that justify the award of special costs
are scandalous, outrageous, or reprehensible. In one of the quotes, it is noted
that reprehensible conduct can include milder forms of misconduct. It means
simply deserving of reproof or rebuke. At that end of that paragraph, Justice
MacKenzie says:

Thus, the standard of
“reprehensible conduct” can include misconduct deserving of reproof or rebuke.
A “reckless indifference” to the manifest deficiency of a party’s claim can
warrant special costs under this standard. The determination of whether an
award for special costs is appropriate is case-specific and fact driven.

[26]        
In my view, this is not a case where the circumstances are sufficiently
concerning or troubling that an award of special costs is appropriate and costs
will be instead party-party costs at Scale 3.

[27]        
Now, anything else, gentlemen?

[28]        
MR. GOLDSTONE:  My Lord, I would ask that we set a figure for this,
if we can, to avoid having to deal with the taxation at some later point if we
cannot agree.

[29]        
THE COURT:  All right. Well, I am prepared to entertain that. Do you
have any submissions as to what that should be?

[SUBMISSIONS RE
COSTS]

[30]        
THE COURT:  What I am going to do is this. I am not going to make any
allowances for item 2. Much of the correspondence, at least that I have seen,
has been in relation to matters that are the substance of the application as
opposed to dealing with the application itself and the action is still ongoing
and, presumably, correspondence will be factored in, as Mr. Goldstone
suggested, ultimately when costs are dealt with.

[31]        
In respect of items 21 and 22, this matter was scheduled to proceed and
was unable to proceed due to a lack of available court time. I am going to, in
the circumstances, allow for travel. I am going to allow for the entry of the
order. It is not my view that simply because the plaintiff selects counsel from
outside of an area, that there should be a preclusion from having costs in that
respect, and I am not aware of any precedent that establishes that. With
respect to items 21 and 22, what I am going to do is allow two units and four
units, respectively, simply as a balance in the context. So it will be nine
units allowed plus travel expenses which I will leave to counsel to coordinate.

[32]        
MR. DOYLE:  My Lord, just for my clarification, it was fading a bit
there, is that nine units plus the travel expense?

[33]        
THE COURT:  Yes, nine units plus —

[34]        
MR. DOYLE:  Okay.

[35]        
THE COURT:  — the disbursements for travel expenses.

[36]        
MR. DOYLE:  All right.

[37]        
THE COURT:  All right, anything else, then, gentlemen?

[38]        
MR. DOYLE:  No, My Lord.

[39]        
MR. GOLDSTONE:  No, My Lord.

[40]        
THE COURT:  Thank you.

[41]        
MR. DOYLE:  Thank you.

[42]        
MR. GOLDSTONE:  Thank you, My Lord.

[43]        
MR. DOYLE:  Oh, My Lord —

[44]        
THE COURT:  Yes.

[45]        
MR. DOYLE:  — excuse me —

[46]        
THE COURT:  Yes.

[SUBMISSIONS RE
COSTS]

[47]        
THE COURT:  Well, I am inclined to make it that they are payable
forthwith. I am not — there is no particular reason why they should not be, in
my view, in the circumstances. So those costs will be payable forthwith.

Betton J.