



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Kondor v. Shea,









2016 BCCA 15




Date: 20160111

Docket: CA42577

Between:

Bernadette Kondor

Appellant

(Plaintiff)

And

Dylan Shea and
Lori Shea

Respondents

(Defendants)




Before:



The Honourable Madam Justice Saunders

The Honourable Mr. Justice Lowry

The Honourable Mr. Justice Fitch




On appeal from: an
order of the Supreme Court of British Columbia, dated
January 22, 2015 (
Kondor v. Shea
, Vancouver Registry no. M114203)

Oral Reasons for Judgment




Counsel for the Appellant:



D.W. Grunder





Counsel for the Respondent:



D.H. Taylor





Place and Date of Hearing:



Vancouver, British
  Columbia

January 11, 2016





Place and Date of Judgment:



Vancouver, British
  Columbia

January 11, 2016








Summary:

Appeal by the plaintiff of
an order made by the trial judge after judgment denying her the costs of two
interlocutory applications. Held: appeal allowed. The costs of the two
applications were effectively awarded to the plaintiff by the master who heard
them. It was not open to the judge to deny the plaintiff those costs.

[1]

LOWRY J.A.
: The question on this appeal, for which leave has been
granted, is whether an order made by the trial judge with respect to the costs
of two interlocutory applications heard by a master in the course of the litigation
of the action can be upheld.

[2]

The action is one brought by the plaintiff against the defendants for
personal injury suffered in a motor vehicle accident. A short time before trial
and outside of the time limit provided by the rules to serve an experts
report, the defendants applied for an order requiring the plaintiff to attend
an independent medical examination. The master dismissed the application. The
order made no provision for costs. The defendants subsequently applied for an
adjournment of the trial and again for an order requiring the plaintiff to
attend an independent medical examination. The master dismissed that
application as well. His order provided the plaintiff is entitled to the costs
of this application in the cause. Neither order was appealed.

[3]

Following a nine-day trial, the judge made a substantial award of
damages. He concluded his reasons, 2014 BCSC 2146, by stating the plaintiff was
entitled to costs at Scale B meaning of course the costs of the action apart
from such costs as may have already been awarded in the course of the
litigation of the action. He gave direction for written submissions in the
event that any offers of settlement that may have been made were relevant to
the costs awarded.

[4]

Thereafter, the plaintiff made application with respect to costs
unrelated to offers of settlement. She sought an order awarding her costs of a
second counsel at trial. The defendants then applied for the costs of the two
applications heard before the master with respect to an independent medical
examination. On hearing counsel, the judge made an order providing the
plaintiff was not entitled to the costs of a second counsel, nor of the two
applications heard before the master.

[5]

The plaintiff does not challenge the order with respect to the costs of
a second counsel but contends that, given the provisions of the masters two
orders, the judge was precluded from depriving her of the costs of either
application, although her counsel accepts that was not the position taken
before the judge where the plaintiffs entitlement to costs was argued on its
merits. The defendants maintain the rules afford the trial judge both the
jurisdiction and the discretion to deprive the plaintiff of the costs of the
interlocutory proceedings as he saw fit. The defendants rely on Rules 14(1)(14)
and (15) of the
Supreme Court Civil Rules
but those rules have no
application in the circumstances because the orders the master made effectively
disposed of the costs of the applications in favour of the plaintiff.

[6]

Under the heading Costs of applications, Rule 14-1(12) provides:

(12)      Unless
the court hearing an application otherwise orders,

(a)     if the
application is granted, the party who brought the application is entitled to
costs of the application if that party is awarded costs at trial or at the
hearing of the petition, but the party opposing the application, if any, is not
entitled to costs even though that party is awarded costs at trial or at the
hearing of the petition, and

(b)     if the application is refused,
the party who brought the application is not entitled to costs of the
application even though that party is awarded costs at trial or at the hearing
of the petition, but the party opposing the application, if any, is entitled to
costs if that party is awarded costs at trial or at the hearing of the
petition.

[7]

With respect to the first of the masters two orders, which makes no
provision for costs, it is clear Rule 14-1(12)(b) applies such as to entitle
the plaintiff to her costs of the first application. The master, being by
definition (Rule 1.1(1)) the court hearing an application, made no order as
to costs. The application was refused. The plaintiff, being the party who
opposed the application, is entitled to costs because she was awarded costs
at trial to be taxed on Scale B.

[8]

There is no basis on which it can be said to have been open to the judge
to make an order providing the plaintiff is not entitled to costs to which
under the rules she is entitled. The rules must govern.

[9]

With respect to the second of the masters two orders, which provides
the plaintiff is entitled to costs of the application in the cause, it is clear
the order the master made has the same effect as Rule 14-1(12)(b). Having
successfully opposed the application, the plaintiff was entitled to costs if,
but only if, she succeeded at trial such that the cause was resolved in her
favour. She was not awarded costs in any event of the cause, as is sometimes
the case, but was to be entitled to costs of the application provided her action
was not dismissed.

[10]

Thus, again, it was not open to the judge to deprive the plaintiff of
the costs she had been awarded by the master upon her action succeeding.

[11]

The judge was not hearing an appeal of the masters orders that would
have permitted him to consider whether the master had in some way erred in
making one or both of his orders. Further, the master did not refer the costs
of the applications to the judge as may be appropriate in some circumstances.
There was then no place for the judges intervention.

[12]

It follows that I would allow the appeal and set aside the judges order
depriving the plaintiff of her costs of the two applications heard before the
master. I would substitute an order dismissing both the plaintiffs application
for the costs of a second counsel and the defendants application for costs of
the two applications heard before the master. Given the divided success on the
cross applications heard before the judge, I would order that each party bear
the costs of their applications before him.

[13]

I would award the plaintiff her costs of the appeal.

[14]

SAUNDERS J.A.
: I agree.

[15]

FITCH J.A.
: I agree.

[16]

SAUNDERS J.A.
: The appeal is allowed in the terms described by
Mr. Justice Lowry, and the plaintiffs shall have the costs of the appeal.

The
Honourable Mr. Justice Lowry


