IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130828

Docket: No. 31123

Registry:
Penticton

Between:

Amber Werner

Plaintiff

And

Kevin Ondrus and
Monica Ondrus

Defendants

– and –

Docket: 31124

Registry:
Penticton

Between:

Amber Werner

Plaintiff

And

Derek John Liebel
and Cynthia Liebel

Defendants

Before:
The Honourable Mr. Justice Jenkins

Reasons for Judgment on the Issue of Costs

[1]            
The plaintiff seeks a reconsideration of my award of costs included in
my reasons for judgment given January 25, 2013. At para. 86 of those reasons
for judgment I made the following award:

As there has been divided
success on the issues, I award the plaintiff 50% of her costs under Scale B.

[2]            
The final order following my reasons for judgment has not yet been
entered and plaintiff’s counsel has correctly pointed out that as a result, I
am not functus officio with respect to matters addressed in the
judgment. I also accept that as trial judge I have discretion to reconsider an
issue prior to entry of the final order.

[3]            
As I did not have the benefit of submissions on costs at the conclusion
of the trial and I did not have before me the formal offers to settle which had
been exchanged prior to the trial, it is appropriate for me to reconsider my
award of costs.

[4]            
Rule 14-1(9) of the Supreme Court Civil Rules provides:

(9)        Subject to subrule
(12), costs of a proceeding must be awarded to the successful party unless the
court otherwise orders.

[5]            
In Aschenbrenner v. Yahemech, 2010 BCSC 1541, Mr. Justice Metzger
found that the term “successful” in the context of Rule 14-1 (9) should be
interpreted as “substantial success” and continued to review the factors to be
considered in determining whether or not to award costs after a trial:

[13]      While the Rule itself does not include the term
“substantial success” under the former Rule 57(9), it was held to be a
necessary and sufficient condition for an award of costs under Rule 57(9) that
success in the outcome of the trial be “substantial”: see Gold v. Gold, 82
B.C.L.R. (2d) 180, 32 B.C.A.C. 287.

[14]      In Fotheringham v. Fotheringham, 2001 BCSC
1321 at para. 18, 108 A.C.W.S. (3d) 786, appeal to C.A. refused, 2002 BCCA 454,
172 B.C.A.C. 179, Bouck J. stated that a trial judge has absolute and
unfettered discretion with respect to costs, but it ought not to be exercised
against a successful party except for some good reason in connection with the
case.

[15]      Mr. Justice Bouck canvassed the factors to be
considered with respect to Rule 57(9), and at para. 45 stated:

[45] Gold now seems to say
that substantial success in an action should be decided by the trial judge
looking at the various matters in dispute and weighing their relative
importance. The words "substantial success" are not defined. For want
of a better measure, since success, a passing grade, is around 50% or better,
substantial success is about 75% or better. That does not mean a court must
descend into a meticulous mathematical examination of the matters in dispute
and assign a percentage to each matter. Rather, it is meant to serve as a rough
and ready guide when looked at all the disputed matters globally.

[16]      Mr. Justice Bouck then sets out a four step inquiry
to determine whether or not to award costs after a trial at para. 46:

1.         First, by focusing on
the "matters in dispute" at the trial. These may or may not include
"issues" explicitly mentioned in the pleadings.

2.         Second, by assessing the
weight or importance of those "matters" to the parties.

3.         Third, by doing a global
determination with respect to all the matters in dispute and determining which
party "substantially succeeded," overall and therefore won the event.

4.         Fourth, where one party "substantially
succeeded," a consideration of whether there are reasons to
"otherwise order" that the winning party be deprived of his or her
costs and each side then bear their own costs.

[6]            
To summarize the submissions of the plaintiff on costs, counsel
emphasizes the success of the plaintiff in her claim for non-pecuniary damages
and my acceptance of the evidence of the plaintiff, the testimony of her
doctors and physiotherapists as to the nature of the injuries suffered by the
plaintiff in the two motor vehicle accidents and also my acceptance of the
plaintiff’s evidence as to the effect of those injuries on her lifestyle. There
is no question that the plaintiff was substantially successful in her claim for
non-pecuniary damages.

[7]            
The plaintiff submits she should be entitled to full costs under Scale
B.

[8]            
However, at trial there were three other issues which were contentious
and those issues were past income loss, loss of future earning capacity and the
costs of future care.

[9]            
Regarding the claim for past income loss, the plaintiff recovered
approximately 80% of her claim.

[10]        
Regarding the claim for loss of future earning capacity, the plaintiff’s
claim was in an amount of $40,000 and I dismissed that claim on the basis that
the plaintiff had found employment she enjoyed and was capable of performing,
at a good wage comparable to the highest hourly rate she had temporarily earned
working on a construction site and the plaintiff had job security and benefits
at the Osoyoos Credit Union.

[11]        
Considering the claim for the costs of future care, in closing
submissions the plaintiff’s claim was in an amount of $90,000 and the award was
in an amount of $5,850 which was generally in line with the submissions made on
behalf of the defendants.

[12]        
As a result, looking at the four heads of claim advanced by the
plaintiff, she was successful on two of the four claims. I accept that more
time was likely spent during trial on the issue of non-pecuniary damages,
however, the amount of time that can be allocated to an issue is not
necessarily determinative of how costs could be allocated.

[13]        
Counsel have also referred me to the formal offers made by both parties
before trial. In this case, the award was less than the offer of the plaintiff
and more than the defendants had offered to settle. More specifically, the
plaintiff had offered in May of 2012 to accept $125,000. In May 2012 the
defendants offered to settle for an amount of $70,600 which offer was increased
in late June 2012 to $75,000. The judgment in favour of the plaintiff was in a
total amount of $106,532.30.

[14]        
Therefore, the final award was within $6,000 of the mid-way mark between
the two offers. As a result, the offers to settle are of little significance in
my finding as to costs.

[15]        
Considering  the four steps of inquiry referred to by Mr. Justice Bouck
in Fotheringham, there was divided success in the “matters in dispute”,
there was also divided success on the more important matters in dispute [ie.
non-pecuniary damages and future care costs], a “global determination”
indicated the decision was almost half-way between the parties’ offers and
finally, the plaintiff “substantially succeeded on one major issue and one
lesser issue and as a result I used my discretion to award one-half of Scale B
costs to the plaintiff.

[16]        
There is, however, one matter of costs which, upon reflection, should be
varied and that is in the costs of the expert medical reports. As the plaintiff
was successful in her claim for damages for non-pecuniary damages, she should be
entitled to full reimbursement for the cost of the reports and attendances at
trial for Dr. le Nobel, Dr. de Vries and Ms. Stefishen, all of whom dealt
solely with the claims for pain and suffering.

[17]        
Counsel for the defendants urges me to reconsider my earlier award as
well and submits that the divided success should result in no order being made
as to costs, ie. that each party should absorb their own costs.

[18]        
In my opinion, my award of 50% of her costs to the plaintiff does
reflect her greater success on the issues but that there are reasons to
“otherwise order” that the winning party be deprived of some of her costs due
to the success of the defendants on some of the issues referred to above.

[19]        
In the result, my award of 50% of her costs to the plaintiff remains a
fair determination on the issue of costs save for the costs incurred for the
medical evidence and professionals referred to above which should be reimbursed
in full.

“Jenkins J.”