



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Bradshaw v. Stenner,









2013 BCCA 61




Date: 20130201

Docket: CA039779

Between:

Lori Noreen
Bradshaw

Respondent

(Plaintiff)

And

Kimberley Shane
Stenner

Appellant

(Defendant)

And

John Bradshaw

Respondent

(Defendant
by Counterclaim)




Before:



The Honourable Madam Justice Saunders





The Honourable Madam Justice Kirkpatrick





The Honourable Madam Justice Garson




On appeal from: Supreme
Court of British Columbia, February 17, 2012
(
Bradshaw v. Stenner
, 2012 BCSC 237, Vancouver Registry No. S072722)

Oral Reasons for Judgment




Counsel for the Appellant:



G.C. Crickmore





Counsel for the Respondent:



A.P. Morrison





Place and Date of Hearing:



Vancouver, British
  Columbia

January 31, 2013





Place and Date of Judgment:



Vancouver, British
  Columbia

February 1, 2013








[1]

SAUNDERS J.A.
:
This
is an application by Ms. Stenner to review an order of a single justice,
Mr. Justice Hinkson, sitting in chambers. By the order the learned justice
declared that leave was required to appeal the matter sought to be brought
before the court, and declined leave to appeal.

[2]

The
application is brought pursuant to s. 9(6) of the
Court of Appeal Act
,
R.S.B.C. 1996, c. 77. On such an application this court does not conduct a
rehearing. Rather, as set out in
Haldorson v. Coquitlam (City)
, 2000
BCCA 672 at para. 7, 149 B.C.A.C. 197, we direct our inquiry to the
following questions, all in consideration of the interests of justice:

a)       was the justice wrong in law?

b)       was the justice wrong in principle?

c)       did the justice misconceive the facts?

[3]

The
order sought to be appealed is an order for special costs, assessed summarily
by the judge in the amount of $5,000 per half day, producing an amount of
$465,000.

[4]

In
his reasons for judgment Mr. Justice Hinkson concluded that leave to appeal was
required. In doing so he considered the relevant authorities from this court,
in the context of our constating statute and
Rules
.

[5]

Section
7 of the
Court of Appeal Act
requires leave to appeal a limited appeal
order. Limited appeal orders are relatively new. The
Rules
define
limited appeal orders in R. 2.1, including (f): an order granting or
refusing costs, or granting or refusing security for costs, if the only matter
being appealed is that grant or refusal. That Rule replicated the previous
Rule which also required leave to appeal an order granting or refusing costs,
where such order was the only matter being appealed.

[6]

In
this case there has been an appeal, dismissed, of the substantive judgment in
the case. The order of costs was made as a separate order and is now the only
matter sought to be brought before this court. In these circumstances, in my
view, the justice was entirely correct in determining that leave to appeal is
required.

[7]

This
brings us to the question of whether a basis is made out to vary his order
denying leave to appeal.

[8]

Two
aspects of the Supreme Court order are sought to be challenged on the appeal,
first the order for special costs, and second the summary assessment of special
costs.

[9]

As
to the first of those issues, it is well known that decisions as to the type of
costs appropriate to a given matter, whether party and party, or special costs,
engages the discretion of the judge making the order. It is that judge, after
all, who sits in the best position to appreciate the relevant factors. In this
case the order for special costs reflected the conduct of the litigants, the
judges view of credibility of the parties, her assessment of the use of court
resources and her view of the honour of the parties in conducting the
litigation. Exercise of discretion that is made reflecting these factors, as
was this order, is most unlikely to be disturbed by a division of this Court.

[10]

The
single justice observed in his para. 37:

[37]      The trial judge
based her award of special costs on these findings, and Ms. Stenners
complaints about the basis for the award are largely, if not entirely, an
attempt to challenge the judges findings of fact and re-argue the basis for the
award. I am not persuaded that Ms. Stenners complaints meet the required test
for merit.

[11]

I
see no misunderstanding or error on the part of the justice in that assessment.
Indeed I entirely agree with it, and there is, accordingly, no basis to
interfere with his order on this proposed ground of appeal.

[12]

Having
decided special costs were appropriate, it was open to the judge to assess them
herself. While I may be puzzled at the judges reference to the issue of
privilege weighing in favour of an immediate summary assessment, because
obviously a person seeking special costs waives, to some extent, matters
between themselves and counsel as are necessary to permit consideration of the
criteria applied under Rule 14 of the
Supreme Court Civil Rules
, it
seems to me from reading the judges reasons on costs, that she decided to
summarily assess special costs in the interests of conservation of judicial
resources, in the context of these protracted, and to some degree wasteful,
proceedings. This court, again, would be most unlikely to interfere with that
exercise of discretion.

[13]

The
second ground of appeal sought to be advanced concerns the summary assessment
itself. Here rise two questions  first the question whether the judge erred in
assessing costs absent evidence before her as to Ms. Bradshaws actual costs,
and second the method chosen by the judge to assess the costs  $5,000 per half
day of trial up to a particular date.

[14]

On
the first matter, it is clear that the judge in this case did not have before
her any evidence as to the legal fees charged to Ms. Bradshaw (although an
affidavit had been filed, it had been filed outside of a time line set by the
court and was disregarded). It is said that there is merit to the argument that
the judge erred in assessing costs absent such evidence and that the single
justice in chambers failed to appreciate that absence of evidence.

[15]

On
the second matter, the method of calculation of the costs awarded, the judge
applied the amount awarded by this court in
Interclaim Holdings Ltd. v. Down
,
2002 BCCA 632, of $5,000 a half day. That amount crops up again in
Buchan v.
Moss Management Inc.
, 2010 BCSC 121, appeal dismissed 2010 BCCA 393. See
also
ICBC v. Eurosport Auto Co. Ltd.
Ms. Stenner contends the judge
erred by applying this amount as if it were a rule or a principle, and that the
single justice in chambers himself erred in failing to appreciate the error of
that methodology.

[16]

Both
the need for evidence and the uncritical application of the half day fee
allowed in
Interclaim
may be issues for resolution by this court in
another case. However, in this case, I do not consider they rise to the level
that warrants leave being granted, for these reasons. First, the transcript of
the costs hearing contains an exchange in which the judge asked counsel for
Ms. Stenner whether she should have evidence on the fees charged, and
inviting an adjournment. This open door was not taken up by then counsel for
Ms. Stenner. Having failed to avail herself of the opportunity given at the
trial level to pursue this issue, I do not consider it in the interests of
justice that leave be given to allow her to do so on appeal. Second, the
reasons for judgment in the order sought to be varied demonstrate Ms. Stenners
position that costs in the amount of $465,000 represented full indemnity. That
submission is at odds with needing to know, through evidence, the amount of
fees that have been charged.

[17]

Nor
does it appear to me that the single justice misunderstood the
Interclaim
rule of thumb issue  he simply considered that in this case it did not
sufficiently support an appeal. Obviously
Interclaim
does not impose a
rule or principle dictating the amount to assess as special costs for a half
day. It could not do so, nor did it purport to do so. An assessment is required
to be case specific and must respond to the language of Rule 14 of the
Supreme
Court Civil Rules
. It seems to me that
Interclaim
is simply a case
in which, in the interests of efficiency, in proceedings that had consumed a
vast amount of court resources with legal accounts that exceeded well over a
million dollars, this court made an assessment. That assessment was made with
appreciation of the nature of the issues and positions taken below, the degree
to which the services were provided in relation to the litigation and for the
party entitled to costs, and the enthusiastic engagement of all the parties in
the full blown extenuated litigation. Not much more can be said about it than
that.

[18]

Here
the single justice in chambers declined to give leave to appeal this issue. In
doing so it does not appear to me that he demonstrated any misunderstanding as
to the import of
Interclaim
. Nor, in the circumstances of this
protracted litigation, does it appear to me that there is sufficient prospect
of a significant reduction in the amount of special costs assessed that it can
be said the interests of justice would be served by giving leave to appeal.

[19]

I
cannot say the single justice misunderstood any aspect of the matter as it was
put to him. I would dismiss the application.

[20]

KIRKPATRICK J.A.
: I agree.

[21]

GARSON J.A.
: I agree.

[22]

SAUNDERS

J.A.
: The application is dismissed.

The
Honourable Madam Justice Saunders


