IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150619

Docket: M134851

Registry:
Vancouver

Between:

Lindsey
Erick Mothe

Plaintiff

And

Jean-Paul
Silva, GFS British Columbia Inc. and Penske Truck
Leasing Canada Inc./Location de Camions Penske Canada Inc.

Defendants

Before:
The Honourable Madam Justice Ross

Reasons for Judgment

[1]            
The plaintiff Lindsey Mothe was injured in a motor vehicle accident that
occurred on November 24, 2011. Liability was admitted. The trial of the action
was heard over five days from October 27 to 31, 2014. Reasons for judgment
indexed at 2015 BCSC 140, were released on January 30, 2015.

[2]            
Prior to trial, the defendants issued three formal offers to settle the
action in the amounts of $20,000 by letter dated February 11, 2014, $23,000 by
letter dated March 17, 2014, and $35,000 by letter dated September 24, 2014.

[3]            
The positions of the parties at trial with respect to the various heads
of damages were as follows:

(a)      Non-pecuniary
loss

The plaintiff sought an award
in the range of $80,000 to $105,000. The defendants submitted that the award
should be $25,000.

(b)      Past
Wage loss

The plaintiff sought an award
of $3,000. The defendants submitted that there should be no award under this
head.

(c)      Loss
of Future Earning Capacity

The plaintiff sought an award
in the range of $250,000 to $300,000. The defendants submitted that there
should be no award under this head.

(d)      Special
Damages

The plaintiff sought $750
which was not contested by the defendants.

(e)      Cost
of Future Care

The plaintiff sought $2,500.
The defendants took the position that there should be no award under this head.

[4]            
Mr. Mothe was awarded damages under each head of damages for which he
sought an award, apportioned as follows:

[5]            
Mr. Mothe was also awarded his costs of the action, subject to liberty
to make further submissions on the issue of costs. The defendants have applied
for the following relief with respect to the issue of costs:

(a)      a determination that
because the total damages awarded were less than $100,000, there is an $11,000
cap on costs pursuant to Rules 14-1(1)(f) and 15-1(15)(c);

(b)      an order that Mr.
Mothe receive costs for three days of trial and preparation pursuant to Rule
15-1(15)(c) and the defendants be awarded costs for two days of trial; and

(c)      an order disallowing
the claim relating to the disbursements claimed for the preparation of the
reports of Dr. Sahjpaul, Dr. Kleinman and Dominic Shew and their attendance at
trial.

Rules 14-1(1)(f) and 15-1(15)(c)

[6]            
Rule 14-1(1)(f) applies in situations in which the total award is less
than $100,000. The Rule provides:

(1)  If costs
are payable to a party under these Supreme Court Civil Rules or by order, those
costs must be assessed as party and party costs in accordance with Appendix B
unless any of the following circumstances exist:

(f)   subject to subrule (10) of
this rule,

(i)   the only relief granted in
the action is one or more of money, real property, a builder’s lien and
personal property and the plaintiff recovers a judgment in which the total
value of the relief granted is $100,000 or less, exclusive of interest and
costs, or

(ii)  the trial of the action was
completed within 3 days or less,

in which event, Rule 15-1 (15) to (17) applies to the action
unless the court orders otherwise.

[7]            
Rules 15-1(15) to (17) provide:

(15)   Unless
the court otherwise orders or the parties consent, and subject to Rule 14-1
(10), the amount of costs, exclusive of disbursements, to which a party to a
fast track action is entitled is as follows:

(a)   if the time spent on the
hearing of the trial is one day or less, $8000;

(b)   if the time spent on the
hearing of the trial is 2 days or less but more than one day, $9500;

(c)   if the time spent on the
hearing of the trial is more than 2 days, $11000.

(16)   In
exercising its discretion under subrule (15), the court may consider an offer
to settle as defined in Rule 9-1.

(17)   If tax is payable by a party to
a fast track action in respect of legal services, an additional amount to
compensate for that tax must be added to the costs to which the party is
entitled under subrule (15), which additional amount must be determined by
multiplying the amount of costs to which the party is entitled under subrule
(15) by the percentage rate of the tax.

[8]            
The principles established in the case law relating to the application
of these Rules include:

(a)      There is discretion to
award costs beyond the limits prescribed in the Rule in special circumstances;

(b)      Special circumstances
include complex factual issues and a trial lasting more than two days;

(c)      Where such an award is justified, costs should be
calculated using the limits prescribed in the Rule as reference points, rather
than under the usual tariff;

(d)      Where
special circumstances exist, an additional $1,500 for each day of trial
exceeding three days has been accepted as the appropriate award: see Saopaseuth
v. Phavongkham, 2015 BCSC 45.

[9]            
Although this case was not conducted as subject to the Fast Track rules
pursuant to Rule 15-1, I find that costs must be awarded pursuant to that Rule
because of the provisions of Rule 14-1(1)(f): see Codling v. Sosnowsky, 2013
BCSC 1220. I find that there are special circumstances in the present case
which warrant an award of additional costs, in particular the factual
complexity of the issues which necessitated a five-day trial to address. Accordingly
the appropriate award is $11,000 plus $3,000, representing two additional days
at $1,500 per day for a total of $14,000.

Rule 14-1(15)

[10]        
Rule 14-1(15) permits the court to make different costs awards for
different parts of the proceeding. The Rule provides:

(15)   The court may award costs

(a)   of a proceeding,

(b)   that relate to some
particular application, step or matter in or related to the proceeding, or

(c)   except so far as they relate
to some particular application, step or matter in or related to the proceeding

and in awarding those costs the court may fix the amount of
costs, including the amount of disbursements.

[11]        
The test for apportionment of costs under Rule 14-1(15) remains the same
as it was under the former Rule 57(15) as set out in Sutherland v. Canada
(Attorney General), 2008 BCCA 27 at para. 31, and Lee v. Jarvie,
2013 BCCA 515 at para. 40:

(1)      the party seeking
apportionment must establish that there are separate and discrete issues upon
which the ultimately unsuccessful party succeeded at trial;

(2)      there must be a basis on
which the trial judge can identify the time attributable to the trial of these
separate issues;

(3)      it must be shown that
apportionment would effect a just result.

[12]        
In Lee v. Jarvie, 2012 BCSC 1521, Mr. Justice Gaul described
guiding principles in the exercise of the court’s discretion to apportion costs
as follows at para. 12:

[12]      From these cases, I have drawn the following
guiding principles relating to the apportionment of costs:

1)    Applications to apportion
costs should be the exception and not the norm in civil litigation, and they
should be limited to “relatively rare cases”.

2)    The power to apportion costs
is a discretionary one that “must be exercised judicially, not arbitrarily or
capriciously”.

3)    The exercise of discretion must be connected to
circumstances of the particular case “which render it manifestly fair and just
to apportion costs”.

[13]        
In the present case, the defendants submit that the question of the
cause of the plaintiff’s C6-7 disc herniation constituted a discrete issue,
which was decided in favour of the defendants. The plaintiff submits that this
was not a discrete issue of the kind that makes apportionment of costs
appropriate and that in any event, apportionment would not be a just result in
the circumstances.

[14]        
I have concluded that this is not an appropriate case to apportion
costs. First, from the perspective of the heads of damage, this is not a case
of divided success, but one in which the plaintiff recovered under every head
of damage claimed. While the awards for non-pecuniary loss and loss of future
earning capacity were considerably lower than the plaintiff’s claim, the
defendants cannot be said to have succeeded with respect to these claims.

[15]        
In addition, there is no conduct on the part of the plaintiff or with
respect to the conduct of the plaintiff’s case which is worthy of criticism. I
found Mr. Mothe to be an honest and straightforward witness. I did not conclude
that he was exaggerating his evidence. I agree with the submission of Mr.
Mothe’s counsel that a clear distinction is to be made between a plaintiff who
lacks credibility, who exaggerates his or her claims, and the plaintiff who is
unable to provide an accurate account of the history of his or her condition
despite best efforts to do so. I found the experts called by the plaintiff to
be helpful. They did not take on an advocacy role.

[16]        
The trial was efficiently conducted and finished within the time that
had been set. In any event, it was necessary to address the role that the disc
herniation played in relation to the plaintiff’s condition and level of
function no matter what the decision on causation of that condition. Thus it
cannot be said that the case was prolonged unnecessarily as a result of the
time spent considering the causation issue. There were no witnesses called
exclusively to testify about the C6 disc herniation.

[17]        
In the result, I am not prepared to exercise my discretion to grant
apportionment of costs.

Disbursements

[18]        
The defendants submitted that they should not have to pay for the
medical legal reports of Dr. Sahjpaul and Dr. Kleinman, or the report of the
occupational therapist Dominic Shew, because they were based on incomplete, and
to some extent, incorrect information. Counsel submits that the court was not
assisted by these reports or the testimony of those experts.

[19]        
I do not agree. In my view, Drs. Sahjpaul and Kleinman and Mr. Shew
provided thoughtful testimony, fully consistent with the responsibilities of an
expert that was of considerable assistance to the court in determining the
matters at issue in the litigation. While I concluded that Mr. Mothe had
provided inaccurate histories, as noted above, I made no finding that this
arose from dishonesty or exaggeration. As I noted at paras. 91 and 92:

[91]      My impression of Mr. Mothe was that he was an
honest and straightforward witness who was doing his best to provide an accurate
and honest account. However, I also formed the opinion that Mr. Mothe was a
very poor historian. In particular, that he had difficulty providing an
accurate account looking back in time. This is consistent with a pattern of
difficulties with the history he provided to experts in the litigation.

[92]      I note first that none
of the experts who testified found evidence of abnormal pain behaviour, pain
amplification or inappropriate illness behaviour. As noted, Mr. Shew noted that
Mr. Mothe provided high levels of effort and passed placebo and distraction
tests. These observations are all consistent with my impression of an honest
and straightforward witness.

[20]        
In my view it was reasonable to secure the evidence of these three
experts in the context of the matters at issue in the litigation. As noted, I
found their evidence to be helpful and consistent with their responsibilities
as experts providing opinion evidence to the court. The plaintiff should be
allowed to recover the disbursements associated with this evidence and these
reports.

Summary

[21]        
In the result, Mr. Mothe is awarded $14,000 for his costs of the trial.
Mr. Mothe is also entitled to recover the disbursements noted above. I decline
to exercise my discretion to grant apportionment of costs.

“Ross J.”