29 Aug Full Costs Awarded at Trial Despite Split Liability

You may have heard about “costs” being awarded after a trial and wondered what those are.  “Costs” are usually awarded to the party who is successful at trial. They are intended to be a partial (not actual) indemnity for legal fees and time spent, plus a reimbursement of disbursements (out-of-pocket expenses) that the successful party incurred in starting or defending the lawsuit.

The rules that govern costs are set out in Rule14-1 and Appendix B of the Supreme Court Rules. The general rule is that the amount of costs is based on the tariff set out in Appendix B, plus disbursements. Occasionally, if there has been reprehensible conduct in the course of the action, such as fraud, the court may order that “special costs” be paid to the successful party.  Special costs are higher and approximate actual legal fees.

At the trial of Ekman v. Cook, 2015 BCSC 1863, the issue was:  who was at fault for the accident.  The Plaintiff was seriously injured in the accident.   He admitted that he was largely responsible for the collision but he claimed the Defendant had contributed to the accident as well.  The Plaintiff offered to settle liability by apportioning 60% responsibility to himself and 40% responsibility to the Defendant prior to the trial. ICBC stood fast in their position that the Plaintiff was 100% liable and the Defendant was not to blame at all.  At trial, the Plaintiff was found to be 75% liable and the Defendant 25% liable for the collision.

Following the trial, ICBC applied to the court to have the Plaintiff’s costs reduced to 25%.  The Judge that heard the application did not agree with ICBC and refused to reduce the Plaintiff’s costs award.

The Judge reasoned that the Plaintiff was prepared to accept 60% of liability prior to trial but ICBC forced him to trial to demonstrate that he was less than 100% liable.  Since the Plaintiff succeeded in demonstrating that he was less than 100% liable, the Judge decided that he should be awarded full costs.

The Judge noted that if the Plaintiff had taken the position that he was not contributorily negligent to a significant degree, or if ICBC had conceded the possibility of some negligence on the Defendant’s part, it is possible that he would have exercised his discretion in a different fashion.