



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Lee v. Jarvie,









2013 BCCA 17




Date: 20130116

Docket: CA040327

Between:

Stanley You Won
Lee aka Stanley Lee

Appellant

(Plaintiff)

And

Ruth Eleanor
Jarvie and Rosana Ng

Respondents

(Defendants)




Before:



The Honourable Madam Justice Newbury





(In Chambers)




On appeal from: Supreme
Court of British Columbia, October 16, 2012
(
Lee v. Jarvie
, 2012 BCSC 1521, New Westminster Docket No. M94690)




Counsel for the Appellant:



T. Spraggs
K. Gardner





Counsel for the Respondent:



C. Godwin





Place and Date of Hearing:



Vancouver, British
  Columbia

January 4, 2013





Place and Date of Judgment:



Vancouver, British
  Columbia

January 16, 2013








Reasons for Judgment of the
Honourable

Madam Justice Newbury:

[1]

The plaintiff Mr. Lee seeks leave to appeal a costs judgment
released after the trial of a personal injury action.  The plaintiff had sought
 the following damages at trial:




Non-Pecuniary Damages



$90,000
‒
$130,000





Loss of Past Income



$92,000
‒
$107,000





Loss of Future Earning
  Capacity



$400,000
‒
$650,000





Loss of Housekeeping
  Capacity



$10,000
‒
$12,000





Cost of Future Care



$46,000
‒
$104,150





Special Damages



$1,722




The trial judges award of
$50,200 (see 2010 BCSC 1852) comprised the following:




Non-Pecuniary Damages



$40,000





Loss of Past Income



$1,650





Loss of Future Earning
  Capacity



$0





Loss of Housekeeping
  Capacity



$0





Cost of Future Care



$7,500





Special Damages



$1,050




[2]

Submissions regarding costs were heard on June 30, 2011 and the
Courts reasons were released on October 16, 2012.  Those reasons, indexed as
2012 BCSC 1521, are lengthy and contain a review of the leading cases of this
court and the trial court dealing with the apportionment of costs in cases
where success has been mixed.  The trial judge disagreed with the plaintiffs
argument that he had been substantially successful at trial.  In his analysis:

In my view, the plaintiff was not substantially successful
at trial. The defendants admitted liability. They also agreed with the
plaintiffs claim for his actual past wage losses. The main dispute between the
parties and the principal focus of the 13 days of evidence was on the
plaintiffs claims for loss of past opportunity to earn wages, loss of future
earning capacity, and cost of future care. I found the plaintiffs claim on the
first two of these issues failed completely and there was divided success on
the third.

In my opinion, the trial of the
plaintiffs action resulted in divided success. I agree with the defendants
submission that given the divided success and the clearly distinguishable
issues upon which they were successful, and the fact that the trial was
prolonged by the claimants pursuit of claims that were unsupported by the
evidence, the plaintiffs case is one where an apportionment of costs is worthy
of consideration.  [At paras. 39-40.]

[3]

The trial judge reviewed what had transpired at trial with respect to
each of the heads of claimed damages, noting that the evidence presented on
past wage loss was so weak there was no option for the court but to dismiss
it and that the claim was grossly inflated and contributed to an unnecessary
protraction of the trial; that the claim  for loss of future earning capacity was
exaggerated and unsupported by the evidence; that the claim for costs of
future care was an unrealistically inflated one that unnecessarily prolonged
and complicated this proceeding; and that overall, the protracted nature of
the litigation was mainly attributable to the plaintiff.  Having concluded that
an apportionment of the costs would be in the interests of justice, he noted
the two methods of apportioning costs discussed by Legg J. (as he then was) in
Waterhouse
v. Fedor
[1984] 13 B.C.L.R. (2d) 186:

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.  [At 190]

[4]

The judge calculated that both approaches would yield the same result. 
He explained:

In the present case, either approach to the apportionment of
costs articulated in
Waterhouse
will yield the same result. In my
opinion, approximately seven out of the 13 days of trial can be attributed to
the evidence and arguments addressing the plaintiffs claims for loss of past
opportunity to earn wages, loss of future earning capacity and cost of future
care. As I am of the view that success at trial was divided, the fair and just
result would be to apportion costs on a 50/50 basis. That is, the plaintiff
will be entitled to 50% of his costs and the defendants will be entitled to 50%
of their costs, both to be set-off one against the other.

Moreover, I am denying the
plaintiff his disbursements associated with the evidence of Mr. Worthington-White,
Ms. Quastel and Mr. Benning. Although I had significant difficulties
with the evidence of Dr. Lee, Dr. Kokan, and Dr. Hershler,
particularly with respect to the plaintiffs claims for loss of future earning
capacity, their evidence was marginally helpful regarding the plaintiffs claim
for general damages and therefore I will grant him 15% of his disbursements
regarding their evidence.  [At paras. 77-78.]

[5]

The plaintiff seeks leave to appeal what he refers to in his written
argument as points in issue  whether the Court erred in granting the
plaintiff only 50% of his costs and granting the defendants 50% of their costs,
to be set off; whether it erred in denying the plaintiff all of his
disbursements relating to two of the experts; whether it erred in granting the
plaintiff only 15% of his disbursements relating to two other experts; and
whether it erred in granting the defendants their costs of the costs hearing. 
The plaintiff contends that the point on appeal is significant to the
practice and to the parties, but with one exception, he does not suggest that any
particular reasoning of the trial judge was erroneous.  It appears his primary
submission is that as a matter of law, the
result
was such that the
trial judges discretion was not exercised judicially and that the plaintiffs
victory may be only a pyrrhic one once the amounts of costs have been
determined.

[6]

The one issue of law advanced by the plaintiff is that there is an
inconsistency in the jurisprudence of the British Columbia Supreme Court as to
whether heads of damages can be considered as discrete issues on which
success or failure may be judged and on which costs may be apportioned.  On
this point, Mr. Spraggs cited
Sutherland v. Canada (Attorney General)
, 2008
BCCA 27 at para. 31, where this Court noted the test for the
apportionment of costs under former Rule 57(15).  With respect, I do not read
Sutherland
as disclosing any particular conflict in the jurisprudence.  The question
of what constitutes a particular issue or part of the proceeding within the
meaning of the former Rule 57(15) was debated some years ago in
British
Columbia v. Worthington (Canada) Inc.
(1988) 32 C.P.C. (2d) 166 (B.C.C.A.),
but in my view, the jurisprudence has for some time considered heads of damages
to be issues or parts of the proceeding within the meaning of former
Supreme Court Rule 57(15), on the basis of which costs could be apportioned in
appropriate cases.

[7]

The new rule, however, uses very different terminology.  Rule 14-1(15) of
the Supreme Court Civil Rules now states:

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. 
[Emphasis added.]

The trial judge stated at
the beginning of his reasons (paras. 8-10) that he saw no meaningful
difference between former Rule 57 and the new Rule 14-1.  It was because of
this that he referred to this courts decision in
Sutherland
and was
guided by the test articulated at para. 31 of that case by Chief Justice
Finch:

The test for the apportionment of costs under Rule 57(15) can
be set out as follows:

(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.

[Emphasis added.]

[8]

It does not appear that either party before the Court in the costs
hearing in the case at bar argued that Rule 14-1(15) differed in any material
respect from its predecessor, and as has been seen, none of the grounds of
appeal proposed to be argued on appeal refers to the wording or effect of the
new Rule as something distinct from the former one.  I note that  Madame
Justice Dillon  and Mr. Gordon Turriff,  the authors of the
British Columbia
Annual Practice
(2013), say this at the beginning of their annotation of
Rule 14-1(15):

Quaere
whether matter is
intended to include issue, one of the keyswords used in Rule 57(15), the
predecessor to this subrule.  The authors make that assumption.  They also
assume that step is used as a synonym for part, a second keyword in the
predecessor subrule.  If the authors assumptions are incorrect, many of the
annotations included under this subrule may no longer be useful.

[9]

It seems to me that the wording of the new Rule is sufficiently
different from the old as to warrant consideration by this court, even though this
point was not raised by the applicant for leave in this case. Arguably, the
word matter is to be interpreted
ejusdem generis
with application 
and step-- in which  case the jurisprudence under the former Rules may no
longer  be correct. This point is of importance to the practice and to the law
generally.  Accordingly, I grant leave to Mr. Lee to appeal on the general
question (which may well be approached as encompassing several sub-questions) of
whether, given the wording of Rule 14-1(15), the trial judge erred in
apportioning and making the order as to costs that he did.

The
Honourable Madam Justice Newbury


