Plaintiff’s Claim Dismissed At Trial ; Owes $75,000 To ICBC For Costs And Disbursements

In Chen v Beltran, the Plaintiff’s claim was dismissed at trial, and the Plaintiff was ordered to pay ICBC $75,000 in costs and disbursements, despite the crippling effect this would have on the Plaintiff’s family.

 

[11]           The first basis upon which the plaintiff says the defendants should be denied costs is that Allan suffered significant injuries in the Accident and will require ongoing medical and psychological care throughout his life.  His ongoing care will involve significant cost to both his parents.  Allan’s parents have already incurred substantial debt to prosecute the lawsuit, have limited financial resources and will have difficulty providing for Allan’s future care even if they are successful on this application.  The plaintiff says that an order for costs will financially “cripple” the family.  While I have great sympathy for Allan’s parents the case law is clear that the financial circumstances of a litigant, standing alone, are not to be taken into consideration as a factor in the awarding of costs.

 

[12]           In Robinson v. Lakner 1998 CanLII 5206 (BC CA), (1998),159 D.L.R. (4th) 191, 107 B.C.A.C. 64 (C.A.) the Court of Appeal allowed an appeal from a decision by the trial judge to limit costs awarded to a successful defendant to $1,500 because of the plaintiff’s “difficult financial circumstance”.  The Court held, at para. 5, that “financial hardship in itself is not a sound basis for departing from the usual rule with respect to costs”.

 

[13]           In Cowherd v. Fraser Valley Health Region et al2004 BCSC 698 (CanLII), 2004 BCSC 698, Madam Justice Ballance stated, at para. 5:

 

[5]        The principle which has emerged from recently decided authorities is that, in general, the unfortunate personal circumstances and characteristics of a litigant are not to be taken into account by the court in exercising its discretion in making an award of costs.  Such personal circumstances would encompass a party’s needy financial situation (Brown v. Black Top Cabs Ltd. 1997 CanLII 4042 (BC CA), (1997), 43 B.C.L.R. (3d) 76 (C.A.); Zelenski Estate v. Fairway 1998 CanLII 4229 (BC CA), (1998), 60 B.C.L.R. (3d) 76 (C.A.); Churchland v. Gore Mutual Insurance Co. (unreported), September 23, 1999, No. SO-9912, Vancouver (S.C.).  There is also authority that the financial hardship of a litigant who would otherwise be responsible to pay costs should not, standing alone, justify a departure from the ordinary rule.  (Robinson v. Lakner 1998 CanLII 5206 (BC CA), (1998), 159 D.L.R. (4th) 191 (B.C.C.A.)).

 

[14]           It is clear based on the above authorities that this Court is unable, on any principled basis, to take the plaintiff’s financial circumstances into account in determining whether to award costs.

 

[15]           To conclude otherwise would undermine the rationale underlying Rule 14-9 and would likely lead to the promotion of litigation rather than to promote the “winnowing” function described by Hall J.A. in Catalyst Paper.  It would lead to a collapse of the general principle discussed in the authorities and result in the unacceptable proposition that costs in each case would be measured not by a party’s success but by the personal financial circumstances of the litigants.

 

[16]           However, while financial hardship standing alone does not warrant mitigation of an award of costs, there are other circumstances raised by the plaintiff which I now turn to consider.

 

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