Court’s message to the profession – assessment of costs

This application to assess the Plaintiff’s Bill of Costs was not properly handled and it resulted in a message from the Court to the profession in how to proceed on these types of applications going forward.

If you read enough published cases, you start to see what is expected in any matter before the Court, and this review process becomes a learning experience. It is a very helpful platform of mentorship.  Whether you are a lawyer or paralegal in the profession, these messages from the Court will assist us in our approach when preparing for any hearing.  It serves as a reminder of the necessity of due diligence and of course, respecting the Court’s time – which means we all need to consider efficiency.

This is not a form of judgment – we have all been there where a matter was overlooked, or perhaps you were not prepared and of course, many times there is a learning curve.  We need to review these matters ahead of time, and ensure that we all do better in preparing our materials.

The referenced hearing is Brown v. Goodacre, 2019 BCSC 1008 (CanLii):

These reasons address the assessment of the plaintiff’s costs incurred in the prosecution of a personal injury claim. On July 19, 2018, following a 28 day trial presided over by Gaul J., a jury awarded the plaintiff the sum $847,000, broken down as follows:

  1. $100,000.00 for non-pecuniary damages
  2. $132,000.00 for special damages
  3. $185,000.00 for past loss of income
  4. $302,000.00 for future loss of income, and
  5. $128,000.00 for cost of future care.

The Court’s Message as it relates to assessment hearings

  • Do not forget to file your hearing record when proceeding with these application hearings or a delay will result
  • Ensure you are providing detailed objections to the bill of costs in advance of any hearing
  • You must approach the assessment[1]of costs with the same seriousness and preparedness as any other step in the proceeding
  • When large sums are involved, take the extra time to ensure your materials are properly prepared with careful scrutiny
  • Do not seek directions or instructions for the registrar
  • Review prior hearings and ensure you are familiar with process and how to conduct the assessment
  • It is not excusable to not know the process simply because you have not attended before a Registrar on a similar hearing. Do your homework!
  • A brief of authorities should be provided to the Registrar
  • Do not simply refer to “commentary” of the law that counsel has “seen”
  • Do not assume that the Court is familiar with all the relevant authorities – it is your job to present all relevant authorities on the matter before the Court
  • It is the task and responsibility of counsel to prepare proper legal argument
  • While the registrar is familiar with the law, it is the responsibility and duty of counsel to assist the presider by providing the complete decision or judgment[2]relied
  • complete citations should be provided also (as is the case when you are in chambers or at trial).
  • No complaining allowed – do not complain at the assessment hearing that the party bearing the onus of proof was put to too much work to meet the opposing party’s objections to the bill of costs.
  • All attempts to negotiate these matters should be undertaken prior to scheduling an assessment hearing.
  • when strict proof is demanded as to the necessity, propriety or reasonableness of a claimed disbursement, there is no alternative to providing that proof: Holzapfel v. Matheusik (1987), 14 B.C.L.R. (2d) 135 (C.A.).
  • Additional directions may be sought from the registrar if a party is confused by or dissatisfied with the written objections provided. You may attend at a pre-hearing conference for this direction.
  • the opposing party is expected to confine submissions to the objections identified in advance of the hearing.
  • if the objection is stated beforehand to be with the reasonableness of a charge, a party should not wait until the assessment to press that the disbursement was also unnecessary or improper.
  • Do not contest a disbursement on the basis that the charge is simply unnecessary, improper or unreasonable – this is not helpful. Expand on this topic for all parties for purposes of efficiency.
  • Focus on communication style when negotiating, ensure you are identifying the issues in dispute clearly.
  • Do not waste the court’s time – do not carry on a prolonged debate or argument at the hearing. These discussions should happen before the hearing.
  • Further, as with any other court appearances, counsel should conduct these types of exchanges in advance of the hearing or during the court breaks and can ask that the matter be stood down for that purpose.
  • Do not use the assessment process to criticize each other’s professionalism.
  • Do not complain at the hearing (emphasis)
  • Do not include complaints in the affidavit material;
  • Do not raise allegations of wrongful conduct in oral submissions.
  • Do not raise any matter that is not on point and does not assist the registrar in performing an assessment of costs.
  • Ensure the Affidavits of justification are clear, concise and helpful to the process of deliberation

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