This post will offer an analysis of the issue of whether a Plaintiff is entitled to costs pursuant to Rule 15-1(15). The leading authority Christen v. McKenzie, 2013 BCSC 1317 is noted, including various cases which reference this case.
(15) Unless the court otherwise orders or the parties consent, and subject to Rule 14-1 (10), the amount of costs, exclusive of disbursements, to which a party to a fast track action is entitled is as follows:
a) if the time spent on the hearing of the trial is one day or less, $8 000;
b) if the time spent on the hearing of the trial is 2 days or less but more than one day, $9 500;
c) if the time spent on the hearing of the trial is more than 2 days, $11 000.
The issue raised in Yuan v. Fan, 2017 BCSC 147 is whether the Plaintiff is entitled to the full fast track costs as it relates to preparation outlined in Rule 15-1(15) in light of the fact that the matter settled near 7 months prior to the scheduled trial date.
Note: Under (a) of Rule 15-1(15) = $8,000 ($1,500 is for 1st day of trial / $6,500 relates to “preparation time”)
FACTS TO CONSIDER:
- MVA July 23, 2012
- XFD of Plaintiff occurred on June 2015 (duration: 2 hours)
- XFD of Defendant was not necessary, liability was admitted
- Trial Date: June 20, 2017 (3 days)
- Expert reports sought: GP & Psychiatrist
- Settlement discussions commenced Nov. 2, 2016 and settled on Nov. 17, 2016
The leading authority that discusses the law on the issue of fast track costs is Christen v. McKenzie, 2013 BCSC 1317. The law as referenced in this decision is noted:
To my mind significant preparation for trial ought to be sufficient to entitle the successful party to costs for pre‑trial preparation to the full amount of the cap, presently $6,500 pursuant to Rule 15‑1(15). Pre‑trial preparation may take various forms given the demands of the particular action. Whether the parties engage in extensive negotiations or mediation and thus achieve a settlement months or days before trial, the preparation by counsel may easily approach that required to actually conduct the trial. The focus ought to be on the amount of useful preparatory work done and not where in the pre‑trial timeline the resolution was reached.
Therefore, if the Court finds that the party has spent significant time preparing for trial, the successful party will be entitled to the full cap under Rule 15-1(15)(a) of $6,500.
The Court also considered Noori v. Pochman, 2016 BCSC 1329 (CanLII), at paragraph 6, the court states:
Different cases involving different parties, different injuries, and different issues will be ready for trial at different times depending on the circumstances.
While the Defendant in this action argued that the Plaintiff should not be entitled to the full amount of the cap for preparation time due to the fact that the Plaintiff had much more preparation left to do had the trial proceeded, the Court did not accept this argument and awarded the full amount of costs for preparation time in the sum of $6,500. 3 Units was also awarded for costs of the hearing.
Case Law Referencing Christen v. McKenzie, 2013 BCSC 1317 include:
- Berekoff v. McMath, 2013 BCSC 2032 (CanLII) I am satisfied on the evidence that very significant preparation had been done by Mr. Caissie on behalf of the Plaintiff. He submitted if the case had not settled all he would have been left to complete was the final preparation of his client to give evidence at trial, to prepare the Plaintiff’s family physician and his chiropractor to ready them for giving their evidence at trial, and lastly, an attendance at a trial management conference that would have been held on July 11, 2013.
- Harvey v. Tooshley, 2014 BCSC 433 (CanLII) It is now well established that the registrar has some discretion to reduce the lump sum fee portion of costs allowed under Rule 15-1 if the action is settled before trial. That discretion is said to be a “rough and ready” exercise and allows the registrar to consider the steps been taken to the date of settlement. Nevertheless, the registrar is not expected to parse out those steps as if the tariff to Appendix B applies.The approach by assessing officers has been to make some reduction for the costs that might be attributed to attendance at trial and allow the balance as so-called preparation costs. Assessing officers have allowed $6,500 for these preparation costs, whether the matter settled three months before or on the eve of trial. The court has endorsed this approach: Christen v. McKenzie, 2013 BCSC 1317. Moreover, this approach is consistent with the purpose of Rule 15-1 which is to provide a simplified and streamlined litigation process, including the costs assessment process.
- Amiel v. Ens, 2014 BCSC 2052 (CanLII) Several cases have considered Rule 15–1(15) of the Supreme Court Civil Rules [Civil Rules] in the context of settlements before trial and established that there is a $6,500.00 “cap” available for costs where fast track cases settled before the commencement of the trial: Christen v. McKenzie, 2013 BCSC 1317 (CanLII) at para. 35.
- Saintonge v. Puni, 2014 BCSC 1637 (CanLII) After reviewing all of the authorities, I conclude as follows:
a) The plaintiff is entitled to one set of costs for each proceeding; and
b) On assessment of costs, a registrar or a master utilizing jurisdiction under Rule 14-1(15) can apportion costs, for example, by allowing the full amount of $7,000 for one proceeding and some lesser amount for the second proceeding.
As is apparent, this case raises an important practice point that has not previously been decided. It is not a case where special costs should be ordered.
 After considering the facts deposed to, I conclude that no apportionment is appropriate in these cases. I order that the plaintiff is entitled to $6,500 costs in each of the two actions, for a total of $13,000.00 costs, plus applicable taxes and disbursements.
 In addition, the plaintiff is entitled to costs of this application which I summarily assess pursuant to Rule 14-1(15) at $500 inclusive of taxes and disbursements.
- Tomas v. Mackie, 2015 BCSC 364 (CanLII) When costs are to be awarded to multiple parties within the litigation, an assessment must be made which apportions the preparation by viewing the totality of the litigation. The rough and ready approach does not require a detailed parsing of what has occurred, but it does require an overall perspective to put the matter in context of what was done by the parties up to the point the litigation resolved.
- Karp v. Kalsi, 2015 BCSC 1949 (CanLII) I am satisfied that the matter was substantially ready for trial. The parties were able to evaluate the strengths and weaknesses of their respective cases and, to their credit, were able to resolve the matter five months before trial. In this case, as I have said, the parties were ready for trial. As is almost always the case, unless a settlement occurs “on the courthouse steps”, there is something more that could be done by counsel for the parties but Supreme Court Civil Rule 15-1 is meant to encourage timely settlement and resolution of litigation, including claims for costs. For those reasons, I award the plaintiff the full amount allowed pursuant to Rule 15-1(15), being $6,500 plus taxes
- Noori v. Pochman, 2016 BCSC 1329 (CanLII) The central issue is whether the case was significantly prepared for trial. If so, the plaintiff is entitled to the full cap, presently $6,500 plus applicable taxes. One thing to be kept in mind is that the question of whether the plaintiff’s case was significantly ready for trial is a case specific inquiry. Different cases involving different parties, different injuries, and different issues will be ready for trial at different times depending on the circumstances.
- Johal v. Radek, 2016 BCSC 1170 (CanLII) Where the offer was made shortly before or during the course of trial, the courts have commonly doubled the costs of the remaining days of trial. In some cases, they have doubled only some of the remaining days of trial; see Pichugin and Codling. Where the offer was made in advance of trial, the courts have “ball-parked” how far along the parties were with respect to trial preparation at the time of the offer; see Benz. This inevitably results in a “rough and ready approach” – the turn of phrase used by Arnold-Bailey J. in Christen v. McKenzie, 2013 BCSC 1317 (CanLII) at para. 34. Some decisions have applied flat discounts, such as the 10% discount applied in P.H. or the 25% discount applied in Nicoletti v. Curry, 2013 BCSC 2469 (CanLII) at para. 37. In others, the court has simply fixed costs pursuant to R. 14-1(14) such as in Peacock and in Coutakis v. Lean, 2012 BCSC 1447 (CanLII) at paras. 24-27. Finally, where the offer to settle was made relatively early on in the litigation, the courts have doubled the full amounts set out in R. 15-1(15), as in P.H., Sciancamerli, Monical, and Ducharme.
- Johnstone v. Haynes, 2016 BCSC 770 (CanLII) There will be circumstances where two sets of Civil Rule 15-1 costs will not be appropriate. In the presence case, the defendants have had the benefit of the streamlined process of Civil Rule 15-1 and the benefit of the two actions having been combined for the purpose of being heard together. The defendants have also had the further benefit of two separate legal actions having been commenced, which allowed the plaintiff to be examined for discovery twice, once in each action. In both actions, trial preparation was substantially completed. In the circumstances, the sum of $6,500 in fees is awarded for each action, with applicable taxes.
- Gill v. Fowler, 2016 BCSC 1163 (CanLII) The governing case, interestingly, because it sort of speaks to a generality, but the governing case seems to be Christen v. McKenzie, that is a decision of Madam Justice Arnold‑Bailey, reported at 2013 BCSC 1317 (CanLII) in which she essentially — certifies or encourages may be an overstatement — but certainly recognizes the rough‑and‑ready approach, is the term used. It is much like that Saskatchewan Court of Appeal decision that labelled chambers as “rough justice”, a term that has endured, a hardy perennial, as it were, but that the rough‑and‑ready approach should be recognized and should actually be followed generally to discourage a parsing down, is the term used, a parsing down of costs where the whole intent of the rule is economic litigation, be it fast track, be it called anything else, it is economic litigation. So the parties should be able to rely on fairly quick and summary resolution of these sorts of collateral aspects. I accept that. I, with respect, agree with it. However, as Mr. Di Tomaso pointed out, rough and ready can work both ways, it is a double‑edged sword. It is just as appropriate to look at a proceeding where real economies of scale are sought, and I do not think there is any other reason for joining matters for trial, except to encourage economies of scale and efficiencies, but that rough and ready should apply there, too, and there should be recognized some reduction. Fair enough. I think that is a valid perspective. I think to say in every single case the so far recognized maximum pretrial preparations of $6,500 together with tax would apply is, I think, as I said during submissions, arbitrary. It is not rough and ready; it is arbitrary and becomes one of those straitjackets.Having said all that, I think a small reduction is appropriate here. I think that it is appropriate to recognize that, by putting all matters together, certain preparations would have been probably avoided. I also recognize and note the attempts by the plaintiff to already bring efficiencies and expedition to the matter by joining the first two accidents in one notice of civil claim. I cannot fault her for a second for having two separate and subsequent NOCCs, two separate and subsequent proceedings.See Disclaimer in “About” Page