2008 BCSC 1314 Shearsmith v. Houdek

Before: The Honourable Mr. Justice S.R. Romilly

Reasons for Judgment

Counsel for the Plaintiff	D. Todd Brown
Counsel for the Defendant, Frantisek Houdek	Christopher B. Doll
Date and Place of Hearing:	September 26, 2008
	Vancouver, B.C.

Nature of Application

[1] This is an application by the defendant Frantisek Houdek, pursuant to Rules 57(9) and 57(15) of the Rules of Court, for the following relief:

(1) That he be permitted to make submissions as to costs.

(2) That he be awarded costs and disbursements for that portion of the proceedings related to the claims for past income loss and cost of future care, such costs and disbursements to be set aside against any costs or disbursements otherwise owing by the defendant to the plaintiff.

(3) In the alternative, that he be awarded a percentage of the costs of the proceedings as a whole, such costs and disbursements to be set aside against any costs or disbursements otherwise owing by the defendant to the plaintiff.

[2] The defendant is permitted to make submissions as to costs, and for the reasons that follow, the defendant is awarded costs and disbursements for that portion of the proceedings relating to the plaintiff’s claims for past wage loss and cost of future care, such costs and disbursements to be set aside against any costs or disbursements otherwise owing by the defendant to the plaintiff.

Background

[3] The plaintiff brought a personal injury claim against the defendant for damages arising out of a motor vehicle accident which occurred on May 3, 2004. The trial was heard by me over 11 days, completing on July 11, 2008. I rendered judgment on July 28, 2008; see Shearsmith v. Houdek, 2008 BCSC 997. I have no doubt that the plaintiff’s original claim was grossly exaggerated and that as a result, the trial took much longer than it should have.

[4] At trial the plaintiff sought damages of $576,738, including $250,000 for loss of earning capacity, and $190,542 for cost of future care. The quantum of the award made by me was $81,694. That award was divided up as follows:

Non-pecuniary damages	$60,000
Damages for loss of earning capacity	$20,000
Special damages	$1,694

[5] The plaintiff’s claims for damages relating to past wage loss and cost of future care failed completely.

Position of the Defendant

[6] In his submissions the defendant drew my attention to the applicable Rules of Court. Rule 57(9) states:

Subject to subrule (12), costs of and incidental to a proceeding shall follow the event unless the court otherwise orders.

[7] Rule 57(15) states:

The court may award costs that relate to some particular issue or part of the proceeding or may award costs except so far as they relate to some particular issue or part of the proceeding.

[8] In support of his submissions, the defendant cites the following authorities: Sutherland v. Canada (Attorney General), 2008 BCCA 27, 77 B.C.L.R. (4th) 142; Bailey v. Victory (1995), 4 B.C.L.R. (3d) 389, 57 B.C.A.C. 23; Gotaverken Energy Systems Ltd. v. Cariboo Pulp & Paper Co. (1995), 9 B.C.L.R. (3d) 340, 45 C.P.C. (3d) 78 (S.C.); Berston v. McCrea, [1996] B.C.J. No. 134 (S.C.); Gemmell v. Reddicopp, 2003 BCSC 525, 32 C.P.C. (5th) 99; Waterhouse v. Fedor (1987), 13 B.C.L.R. (2d) 186 (S.C.); Compas v. David, [1996] B.C.J. No. 909 (S.C.); Walker v. Ritchie, 2006 SCC 45, [2006] 2 S.C.R. 428; Medeiros v. Vuong, 2001 BCSC 326; and Moore v. Castlegar & District Hospital (1998), 59 B.C.L.R. (3d) 368, 113 B.C.A.C. 285.

[9] Both counsel agree that the appropriate test is that set out in Sutherland at para. 31, which provides that the relief requested by the defendant should only be granted if the following three criteria are met:

(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.

[10] The defendant drew my attention to Bailey, where Justice Cumming, for the court, defined an “issue” for the purposes of Rule 57(15) as a point which either entitles the plaintiff to relief, or would entitle the plaintiff to relief but for some other consideration:

[16] Some assistance upon the question of what is an “issue” within the meaning of this rule can be gleaned from my judgment on the question of costs in Worthington reported at (1986), 11 B.C.L.R. (2d) 54.

[17] At p. 55 I said:

In the case of Sigurdson v. Fidelity Ins. Co. of Can., [1977] 6 W.W.R. 451, 26 C.B.R. (N.S.) 132 (B.C.S.C.), McKenzie J. drew a distinction between the litigious “war” and the battles fought during the war. Quite obviously, the defendants have succeeded in the war, but they have come out severely scarred, having lost significant battles during the conflict.

Mr. Weatherill for the defendants insists that, notwithstanding the fact that the defendants were unsuccessful in respect of certain major questions (to use a neutral term), they should not be deprived of full costs or be required to pay any of the plaintiff’s costs because the defendants succeeded 100 per cent on both basic issues of breach of contract and negligence, having shown that the plaintiff was the cause of the damages it incurred. If Mr. Weatherill is correct, one party to a litigation, who ultimately succeeds on a narrow but vital point, could subject his opponent to ruinous expense by raising a multitude of spurious issues and could do so without risk of being mulcted in costs. In my view, that argument cannot be sound. This is surely the very sort of abuse against which R. 57(8) was designed to relieve.

Some light on the question of what is an “issue” within the meaning of this rule was cast by Buckley L.J. in Howell v. Dering , [1915] 1 K.B. 54 (C.A.), when he said at p. 63, “It is a question which, however it is answered, does not in itself lead to relief”. In the Sigurdson case, McKenzie J., after referring to the judgment of Buckley L.J. in Howell, said at p. 456 that “an issue” within the meaning of R. 57(8) [now R. 57(15)] “is that which, if decided in favour of the plaintiff, will in itself give a right to relief, or would, but for some other consideration, in itself give a right to relief”. The significant words are “but for some other consideration”.

It cannot be successfully contended that in order to be entitled to the benefit of R. 57(8) the issue can only be one which in itself leads to relief either for the plaintiff or the defendant. The plaintiff’s failure on the question of who was responsible for the missing orifice is the “other consideration” which deprived it of the relief it would otherwise have realized as a result of its success on the contract and lineshaft issues, the battles over which the defendants lost.

[11] The defendant submits that the plaintiff’s claims relating to past wage loss and cost of future care are distinct issues upon which the plaintiff did not succeed and which had the effect of protracting the trial, and that she should therefore be denied her costs associated with these claims.

[12] The defendant submits that it is possible to determine the amount of time attributable to each issue in two ways. First, the court may consider which witnesses were called at trial to testify with respect to each issue, the evidence tendered on each issue, and the time spent dealing with that evidence in direct, in cross-examination, and in argument. Alternatively, the defendant submits that the court may consider how much of the trial as a whole was consumed with consideration of each issue, and then assign a percentage amount to any award of costs.

[13] With respect to this submission, counsel for the defendant drew my attention to Waterhouse at 190, where Justice Legg described these alternative methods of apportioning costs:

I also agree that two methods may be used in determining “the degree of success”. One method involves the judge assessing a percentage figure to the relative success of the parties. The other method involves determining the number of days spent in trial on “unsuccessful” issues in proportion to the time spent on “successful” issues. Either way, the relative success of the parties is determined and each party is entitled to that portion of his own costs, which are then set off against the other, and the difference, if any, is paid to the party in whose favour the difference lies. I refer, as counsel did, to Larson v. Harrison Mills Limited et al. (1958), 26 W.W.R. 278 (B.C.C.A.), per Coady J.A., and Forrest v. Gairdner & Co., supra.

[14] The defendant also relies on Gotaverken Energy Systems Ltd., where Justice Vickers described the inexact nature of the apportionment of costs:

[9] I acknowledge that applications to apportion costs should not become regular features of litigation: Hammond v. Assn. of British Columbia Professional Foresters, (February 20, 1992), Vancouver Registry No. A901332, (B.C.S.C.), Esson C.J.S.C. at p. 2. Rule 57(15) was not designed to allow for a minute dissection of the success or failure of litigants on the completion of a trial. It envisioned there would be discrete issues, occupying distinct portions of time in the life of the trial, upon which an objective observer could say one or other of the parties was successful in the result. It may not be possible to perform a perfect analysis of how the time at trial was utilized. A particular witness may have been called to testify on one matter or on several matters in issue. That was the situation in this case.

[15] The defendant submits that he should receive his costs and disbursements related to the issues of past wage loss and cost of future care and, conversely, that the plaintiff should be denied her costs and disbursements related to these issues. In support of that position, he drew my attention to Gemmell, where Justice Wilson arrived at an approximate apportionment of the time consumed by issues on which the defendant and the plaintiff, respectively, were successful:

[28] As a result of the mistrial declaration, I made an order that plaintiff's counsel pay the defendants’ costs thrown away. The actual court time thrown away, by loss of the jury, I assess at two days. Of the remaining nine court days, I assess four days expended in proving the issue upon which the plaintiff was successful; and five days in proving the issues on which the defendants were successful.

[16] The defendant submits that many of the witnesses in this case testified entirely, or primarily, in relation to the issues on which the plaintiff failed. He submits that the evidence of Mike Scott, Clint Parcher and Louise Keller all concerned the issue of past wage loss and that much of the evidence of Randy Johnson concerned the alleged lost employment opportunity. The defendant submits that these witnesses accounted for approximately one day of trial.

[17] The defendant also submits that half of the evidence of Russell McNeil related to the claim for cost of future care, as did the two reports submitted by Robert Carson. He reminded me that Mr. McNeil testified for more than one day and Mr. Carson for 45 minutes.

Position of the Plaintiff

[18] For her part, the plaintiff points out that although the defendant succeeded on the issue of past wage loss, the plaintiff conceded this issue in closing submissions.

[19] The plaintiff concedes that the evidence of Mr. Scott, Mr. Parcher and Ms. Keller did relate, in part, to the plaintiff’s past wage loss claim, however she says that the evidence of those witnesses, and the evidence of Mr. Johnson, also related to two other issues: (1) the plaintiff’s credibility with respect to issues other than her past wage loss claim; and (2) her loss of future earning capacity.

[20] The plaintiff submits that the defendant’s attack on her credibility was directed not only to the issue of past wage loss, but also to the nature, cause and extent of her injuries, and that the defendant did not succeed in using her alleged credibility shortcomings to undermine this aspect of her case. The plaintiff submits that the defendant is unable to apportion his success in attacking her credibility on these distinct issues.

[21] The plaintiff further submits that much of the trial was occupied by the battle of experts regarding the nature and degree of her injuries. She submits that the defendant attempted to use his attacks on her credibility to undermine the opinions of her medical experts, and that in this, he was unsuccessful.

Analysis and Decision

[22] After analyzing the submissions of the plaintiff and the defendant, I reiterate that the plaintiff’s claims in this action were very exaggerated. I am satisfied that the defendant has established that there are discrete issues upon which he succeeded at trial. I agree that the defendant should receive his costs and disbursements related to the issues of past wage loss and the cost of future care and, conversely, that the plaintiff should be denied her costs and disbursements related to those issues.

[23] I also agree with the defendant that many of the witnesses testified entirely, or primarily, in relation to the two issues on which the plaintiff was unsuccessful. I agree that the evidence of Mr. Scott, Mr. Parcher and Ms. Keller all concerned the issue of past wage loss. In addition, much of Mr. Johnson’s evidence concerned an alleged lost employment opportunity. I also agree, based on the clerk’s notes, that these witnesses accounted for approximately one day of trial. In addition, I agree that half of the evidence of Mr. McNeil and the two reports submitted by Mr. Carson related to the claim for cost of future care, and that Mr. McNeil testified for more than one day and Mr. Carson for 45 minutes.

[24] Lastly, I am of the view that there was divided success in this action and I find that the apportionment of costs would therefore produce a just result.

Conclusion

[25] On the basis of the foregoing, I order that the plaintiff be denied her costs associated with two days of trial, and her disbursements associated with the issues of past wage loss and cost of future care, including the cost of care reports of Mr. McNeil and Mr. Carson. In addition, the defendant is awarded his costs and disbursements for two days of trial.

“Romilly J.”