In Bae v. Vasquez, the Plaintiff was injured in a rear end motor vehicle accident, and consequently brought an ICBC claim for pain and suffering. At trial, the Plaintiff was awarded approximately $12,000. ICBC’S lawyer argued that no costs should be awarded, as the matter should have been brought in small claims court, where there is a monetary limit of $25,000. The Court rejected this submission, stating that ICBC’S lawyer’s initial denial of liability, the low velocity impact (LVI) defence, and the Plaintiff’s language barriers, were sufficient reasons for the Plaintiff to sue at the Supreme Court level.

 

[69]         I am satisfied that this case had neither legal nor factual complexities that made the Supreme Court a necessary venue.  I have already referred to the fact that a jury trial was not an option in any case; and there will be no need to enforce the judgment outside of the province.

 

[70]         In some cases, the fact that the plaintiff had difficulty with the English language; and therefore would have difficulty pursuing the claim without the assistance of counsel, has been held to be sufficient reason to proceed in Supreme Court, where the possibility of recovering costs makes it easier for a plaintiff to find counsel willing to act.

 

[71]         Plaintiff’s counsel submits also that in this case, the defendant denied liability for the accident in the Response to Civil Claim.  Plaintiff’s counsel has advised the Court that prior to the action being commenced, the defendant’s insurer had indicated:

 

…that due to the “minimal nature of the impact forces involved in the collision”…the Plaintiff had not sustained any “compensable injury”.

 

[72]         The defendant did not admit liability until January 30, 2012 and even at that date, continued to maintain that the plaintiff had suffered no injury, loss, damage or expense as a result of the accident.

 

[73]         Plaintiff’s counsel submits that because the defendant was maintaining that the plaintiff’s negligence was the sole cause of the accident, an examination for discovery of the defendant was necessary and that procedure would not have been available to the plaintiff in Provincial Court.  Counsel pointed out that at the plaintiff’s examination for discovery in July 2011, she was asked questions pertaining to liability, including whether she had consumed alcohol or drugs prior to the accident; whether she was familiar with the location where the accident happened; whether her vehicle had been properly maintained and was in proper working order and whether she had a valid driver’s licence at the time.

 

[74]         It was not until August 18, 2011 – after both the plaintiff and defendant had been examined for discovery – that defendant’s counsel wrote to plaintiff’s counsel suggesting that the action should be heard in Provincial Court and seeking the plaintiff’s consent to transfer the action to that court.  Plaintiff’s counsel replied on September 21, 2011 indicating that if the trial could be heard in Provincial Court in the same time frame as the trial date set in Supreme Court – March 2012 – then the plaintiff would consider the request for a transfer.  Defendant’s counsel was asked to make inquiries to determine when the trial could be heard if transferred to Provincial Court.  No reply was received.

 

[75]         Ms. Bae testified at trial with the assistance of an interpreter.  She had been examined for discovery without an interpreter and at trial indicated she had misunderstood some of the questions asked of her.  Ms. Bae is not an assertive individual and I am satisfied she would have had considerable difficulty pursuing this action without the assistance of counsel.  Of course, parties may be and often are represented by counsel in Provincial Court, but the unavailability of costs makes it more difficult to find representation.  There was a denial of liability in circumstances where normally liability would be admitted and it was reasonable for the plaintiff to wish to examine the defendant for discovery on the issue of liability – a procedure unavailable in Provincial Court.

In Lee v. Jarvie, the Plaintiff was injured in a motor vehicle accident, and brought an ICBC claim for several heads of damages, such as pain and suffering, income loss, diminished earning capacity, and cost of future care. Although successful at trial in being awarded damages, there were certain heads of damages which the Plaintiff received nothing for. The parties could not argue on the issue of costs, so a court application was brought. Counsel for the Plaintiff argued that the Plaintiff should be entitled to full costs and disbursements, as he was successful at trial, however ICBC’S lawyer argued that there should be an apportionment of costs, given that the Plaintiff did prove his claims for certain heads of damages, such as loss of income, diminished earning capacity, loss of housekeeping, and cost of future care. The issue for the Court to decide was whether the Plaintiff was indeed entitled to full costs and disbursements, or whether in fact there should be an apportionment of costs. Ultimately, the Court ruled that there would be an apportionment.

 

[12]        The issues of apportioning costs between parties under Rule 57(15) of the former Rules of Court was addressed and considered in  British Columbia v. Worthington (Canada) Inc. et al 1988 CanLII 175 (BC CA), (1988), 32 C.P.C. (2d) 166, 29 B.C.L.R. (2d) 145 (C.A) and more recently in Sutherland v. Canada (Attorney General), 2008 BCCA 27 (CanLII), 2008 BCCA 27. From these cases, I have drawn the following guiding principles relating to the apportionment of costs:

 

1)   Applications to apportion costs should be the exception and not the norm in civil litigation, and they should be limited to “relatively rare cases”.

2)   The power to apportion costs is a discretionary one that “must be exercised judicially, not arbitrarily or capriciously”.

3)   The exercise of discretion must be connected to circumstances of the particular case “which render it manifestly fair and just to apportion costs”.

 

[13]        In addition to these principles, I am also guided by the test Finch, C.J.B.C. articulated in Sutherland at para. 31:

 

[31]      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.

 

[39]        The plaintiff in the case at bar asserts he was substantially successful at trial. Moreover, much like the plaintiff appellant in Bailey, the plaintiff maintains it would be difficult, if not impossible, to separate the evidence, witnesses, or time spent exclusively on each issue or head of damages. The plaintiff submits that much of the evidence that he presented at trial was in support of more than one head of damages. Respectfully, I do not agree with the plaintiff’s argument on this point. In my view, the plaintiff was not substantially successful at trial. The defendants admitted liability. They also agreed with the plaintiff’s 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 plaintiff’s claims for loss of past opportunity to earn wages, loss of future earning capacity, and cost of future care. I found the plaintiff’s claim on the first two of these issues failed completely and there was divided success on the third. I should note in passing, that the plaintiff’s claim for loss of housekeeping capacity was denied as well; however that issue was of such a minor nature it was practically inconsequential to the outcome of the trial.

 

[40]        In my opinion, the trial of the plaintiff’s 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 claimant’s pursuit of claims that were unsupported by the evidence, the plaintiff’s case is one where an apportionment of costs is worthy of consideration.

In ICBC injury claims, costs are normally always awarded to the successful party. There do exist certain circumstances, however, where there can be an apportionment of costs. For example, the Plaintiff may be successful overall at trial, and awarded damages, but there can be an apportionment of costs if the Plaintiff did not succeed on specific heads of damages, or if the Court is of the opinion that there has been divided success.

 

In Garcha v. Gill, the Plaintiff was injured in a car accident, and brought an ICBC claim for several heads of damages, including pain and suffering, loss of income, and diminished earning capacity. Although awarded some money for loss of income, the amount fell fall short of what the Plaintiff had been seeking. The Plaintiff also abandoned his claim for diminished earning capacity shortly before the trial was to commence. Under the circumstances, ICBC’S lawyer sought an order for apportionment of costs.

 

[42]           I find that the defendant is entitled to an order for an apportionment of costs.

 

[43]           The test for whether or not an apportionment of costs should occur is set out in Sutherland v. The Attorney General of Canada, 2008 BCCA 27 (CanLII), 2008 BCCA 27:

 

31]      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.

 

[44]           First, I am satisfied that the issue of past income loss is a discrete issue.  I am further satisfied that an apportionment of costs of 70% to the plaintiff and 30% to the defendant, as submitted by the defendant, is fair in the circumstances of this case, given the amount for past income loss awarded to the plaintiff, when compared with his claimed amount; the fact that the plaintiff abandoned his claim for future income loss at the commencement of the trial; and, the inordinate amount of time which had to be spent by the defence prior to the trial to secure proper disclosure of the plaintiff’s business records.  There is no doubt from the chronology of the events preceding the trial that the plaintiff’s failure to provide full and timely document production of his business records had a large impact on the conduct of the proceedings leading up to and during the trial.