IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140902

Docket: M124867

Registry:
Vancouver

Between:

Hao Feng Wang

Plaintiff

And

Gurinder Dhaliwal
and Parmjit Kaur Dhaliwal

Defendants

– and –

Docket: M133384

Registry:
Vancouver

Between:

Hao Feng Wang

Plaintiff

And

Rajvir Kaur Gill

Defendants

Before:
District Registrar Nielsen

Reasons for Decision

introduction

[1]            
This is an assessment of costs related to two separate motor vehicle
accidents which occurred on December 15, 2010, and June 14, 2011. It was agreed
that both actions would be heard at the same time and a consent order to that
effect was filed. Both actions were eventually settled for a global amount.

[2]            
The issue which arises on this assessment of costs is whether the
plaintiff is restricted to a single award pursuant to Civil Rule 15-1, as the
actions were ordered to be heard at the same time, and a consent order to that
effect was filed in the Registry.

background

[3]            
A Notice of Civil Claim was filed on August 10, 2012, with respect to
the injuries the plaintiff sustained in the motor vehicle accident of December
15, 2010. The defendants, Gurinder Dhaliwal and Parmjit Dhaliwal, filed a
Response to Civil Claim on September 19, 2012, denying liability and endorsed
the document “Subject to Rule 15-1”.

[4]            
A Notice of Civil Claim was filed on May 27, 2013, with respect to the
injuries sustained by the plaintiff in the motor vehicle accident of June 14,
2011. The defendant, Rajvir Kaur Gill, filed a Response to Civil Claim on
August 12, 2013, admitting liability but alleging the plaintiff was
contributorily negligent. Again, the Response to Civil Claim was endorsed with the
reference “Subject to Rule 15-1”.

[5]            
Initially, separate lists of documents were filed with respect to each
of the two actions. Eventually, as the actions progressed, supplemental lists
of documents referenced both causes of action in a single document.

[6]            
The plaintiff was examined for discovery twice, once in each action, and
both defendants were examined for discovery. The plaintiff obtained three medical
expert reports, each of which referenced the plaintiff’s injuries in both motor
vehicle accidents.

[7]            
The parties consented to an order that was filed on January 3, 2014, requiring
the two actions to be heard together at the trial which was set for August 5,
2014. The expectation was that the trial would take four to eight days.

[8]            
A trial management conference was scheduled for June 17, 2014. Defence
counsel prepared and served their trial brief. Plaintiff’s counsel was in the
process of finalizing his trial brief when the actions were settled on June 11,
2014.

[9]            
Both actions settled for a global amount of $59,309.08 plus taxable
costs and disbursements.

position of the parties

[10]        
The plaintiff takes the position that he was injured in two separate
motor vehicle accidents, for which he launched two separate legal actions
seeking damages in the Supreme Court of British Columbia.

[11]        
The plaintiff emphasizes that the two actions were not joined until
early 2014 and that both were ready to proceed to trial when settlement was
reached on June 11, 2014, six days before the scheduled trial management
conference and roughly seven weeks prior to trial.

[12]        
The plaintiff cites the cases of Gill v. Widjaja, 2011 BCSC 1822;
Christen v. McKenzie, 2013 BCSC 1317; Woodford v. Owen, 2013 BCSC
2442; and Lasa v. Lau, Vancouver Registry Action No. M131475, all
for the proposition that when an action settles close to trial, following
substantial completion of all the necessary preparation, the full $6,500 cap ought
to be awarded.

[13]        
The plaintiff submits that if this matter were a single action there
would be no reasonable basis to deny the plaintiff costs in the sum of $6,500
as the cases were, with the exception of the trial management conference, ready
to proceed to trial. Plaintiff’s counsel further relies on the case of Harvey
v. Tooshley, 2014 BCSC 433, for the proposition that in circumstances where
two personal injury actions have been ordered to be heard at the same time, and
settled for a global figure shortly before trial, the $6,500 cap can be awarded
for each action.

[14]        
There are similarities between the two cases. In Harvey, supra,
both trials were ordered (by consent) to be heard at the same time; the
medical-legal reports referenced both motor vehicle accidents; the parties were
to attend a single trial management conference; and, costs were assessed in a
single hearing. In Harvey, supra, the plaintiff attended a single
examination for discovery and served a single list of documents and one Notice
to Admit in both actions.

[15]        
In the present case, the plaintiff attended two examinations for
discovery, one in each action, and initially produced separate lists of
documents, although joint amended lists of documents were prepared by both
parties later in the proceedings.

[16]        
The defendants emphasize that although two separate proceedings were
commenced, they ought to have been initially commenced as a single action in
one Notice of Civil Claim. They emphasize Civil Rule 1-3 which provides that:

Object

(1)        The object of these Supreme Court Civil Rules is
to secure the just, speedy and inexpensive determination of every proceeding on
its merits.

Proportionality

(2)        Securing the just, speedy and inexpensive
determination of a proceeding on its merits includes, so far as is practicable,
conducting the proceeding in ways that are proportionate to

(a)     the
amount involved in the proceeding,

(b)     the
importance of the issues in dispute, and

(c)     the
complexity of the proceeding.

[17]        
The defendants argue that they should not have to bear the extra costs
created by bringing a multiplicity of pleadings. They emphasize that the medical-legal
reports in respect of both claims were served in both actions, and combined
lists of documents were eventually prepared. A consent order was entered to
have both actions heard together and, ultimately, a global settlement was
negotiated. They also refer to the fact that the assessment of costs is itself a
simple procedure with respect to both actions.

[18]        
The defendants rely on Peacock v. Battel, 2013 BCSC 1902, which
dealt with the assessment of costs after two personal injury actions were tried
together. The defendants submit that after determining that Civil Rule 15-1
applied to both actions, Mr. Justice Affleck awarded one set of Civil Rule
15-1 fixed costs globally for both proceedings. The defendants submit confusion
arises from the fact that an offer to settle had been made and therefore costs
were increased on that basis, not because two sets of costs were awarded, one
set in each action.

[19]        
In the alternative, the defendants submit that the plaintiff’s costs in
the first action should be assessed at zero because the injuries suffered by
the plaintiff, as particularized in the medical-legal reports, would have put
the case within the jurisdiction of the Small Claims Court.

[20]        
In the further alternative, the defendants submit that the lump sum cost
of $6,500 ought to be reduced for the efficiencies achieved by having the cases
joined together for the purposes of trial.

analysis

[21]        
Although the two actions were ordered to be tried together, by consent,
they involved different defendants and the issues were not identical: liability
had been denied in the December 15, 2010 action and an allegation of contributory
negligence had been raised by the defendant in the June 14, 2011 action. Further,
the defendants required two examinations for discovery of the plaintiff in the
two separate actions and the plaintiff had to conduct an examination for
discovery of each defendant in the two actions.

[22]        
The only commonality in the two actions was the fact that they involved
injuries to the same plaintiff. In the circumstances, it was appropriate to
bring two separate legal actions involving the different defendants and circumstances.
It was equally appropriate to eventually join the cases for the purposes of
trial once it became apparent this approach was workable and efficiencies would
be achieved.

[23]        
As the settlement was global, there is no definitive way in which to
find that the first action, with respect to the December 15, 2010 accident, ought
to have been brought in the Small Claims Court. Further, there was no
application brought to have the case transferred to the Small Claims Court.

[24]        
In Harvey, supra, Master Bouck stated:

[29]      The defendants submit that there ought to be a
reduction in the fees claimed in each action to reflect the savings and
efficiencies achieved by having these matters joined for the purposes of trial.

[30]      It is now well established that the registrar has
some discretion to reduce the lump sum fee portion of costs allowed under Rule
15-1 if the action is settled before trial. That discretion is said to be a
“rough and ready” exercise and allows the registrar to consider the steps been
taken to the date of settlement. Nevertheless, the registrar is not expected to
parse out those steps as if the tariff to Appendix B applies.

[31]      The approach by assessing officers has been to make
some reduction for the costs that might be attributed to attendance at trial
and allow the balance as so-called preparation costs. Assessing officers have
allowed $6,500 for these preparation costs, whether the matter settled three
months before or on the eve of trial. The court has endorsed this approach: Christen
v. McKenzie, 2013 BCSC 1317.

[32]      Moreover, this approach
is consistent with the purpose of Rule 15-1 which is to provide a simplified
and streamlined litigation process, including the costs assessment process.

[25]        
In Musgrove v. Elliot, 2014 BCSC 40, Mr. Justice Johnson considered
the issue of whether two awards under Supreme Court Civil Rule 15-1 were
appropriate in circumstances where two separate actions arising out of two
separate motor vehicle accidents were tried at the same time. Mr. Justice
Johnson stated at paragraphs 24 through 26 as follows:

[24]      The defendants seek to invoke the discretion of the
court to reduce the lump sum costs, otherwise recoverable, on the second action
– $11,000 – because of “efficiencies” achieved as a result of hearing the two
matters at the same time.

[25]      While there were likely some such efficiencies,
there were also complications from running two actions at the same time, as the
plaintiff was required to deal with the circumstances of the second accident
and the impact of any injuries suffered in the second accident on injuries
suffered in the first accident. The time spent on examining the plaintiff for
discovery was double what would have been allowed if there had been only one
action and many of the pleadings were necessarily separate as between the two
actions.

[26]      Two actions were
necessary to deal with two accidents. The defendants in each of the actions
have availed themselves of the costs certainty provided by Rule 15-1 by serving
notice in Form 61 in each action. I see no reason, in the circumstances of
these cases, to reduce the costs otherwise available to the successful
plaintiff in each of the two actions.

[26]        
Most recently, in Saintonge v. Puni, 2014 BCSC 1637, Master
McDiarmid considered whether two awards of costs under Supreme Court Civil Rule
15-1 ought to be awarded in circumstances where two separate actions, when
settled globally for less than $100,000 prior to trial, justified two awards of
costs. He concluded that two awards of $6,500 in fees were appropriate but
acknowledged that an apportionment could be made where appropriate. Master
McDiarmid stated:

[46]      After reviewing all of the authorities, I conclude
as follows:

a)   The
plaintiff is entitled to one set of costs for each proceeding; and

b)   On
assessment of costs, a registrar or a master utilizing jurisdiction under Rule
14-1(15) can apportion costs, for example, by allowing the full amount of
$7,000 for one proceeding and some lesser amount for the second proceeding.

….

[52]      After considering the facts deposed to, I conclude
that no apportionment is appropriate in these cases. I order that the plaintiff
is entitled to $6,500 costs in each of the two actions, for a total of
$13,000.00 costs, plus applicable taxes and disbursements.

[53]      In addition, the plaintiff
is entitled to costs of this application which I summarily assess pursuant to
Rule 14-1(15) at $500 inclusive of taxes and disbursements.

[27]        
There will be circumstances where two sets of Civil Rule 15-1 costs will
not be appropriate. In the presence case, the defendants have had the benefit
of the streamlined process of Civil Rule 15-1 and the benefit of the two
actions having been combined for the purpose of being heard together. The
defendants have also had the further benefit of two separate legal actions
having been commenced, which allowed the plaintiff to be examined for discovery
twice, once in each action. In both actions, trial preparation was
substantially completed.

[28]        
In the circumstances, the sum of $6,500 in fees is awarded for each
action, with applicable taxes.

“District
Registrar Nielsen”