IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140321

Docket: S080395

Registry:
Vancouver

Between:

Theodore
Laktin

Plaintiff

And

City
of Vancouver

Defendant

Before:
The Honourable Mr. Justice Pearlman

Reasons for Judgment

(Re: Costs)

INTRODUCTION

[1]            
The defendant, City of Vancouver, and Constable Richard Coulthard,
Sergeant Jeffrey Clee, and Constable Laura Dujmovic apply pursuant to Rule
14-1(9) of the Supreme Court Civil Rules for an order for the costs of
this action.

[2]            
The plaintiff, Theodore Laktin, brought this action against the City of
Vancouver, and against Constable Coulthard, Sergeant Clee and Constable
Dujmovic for damages for assault and battery and negligence.  On January 21,
2006, while the three police officers were responding to a call that the
plaintiff might be suicidal, Constable Coulthard shot the plaintiff three
times, rendering him paraplegic.  Mr. Laktin suffered catastrophic
physical injuries and psychological injuries, including post-traumatic stress
disorder and depression.  The City of Vancouver and the officers defended the
action on the ground that the shooting was a justified and reasonable use of
force in exigent circumstances where the plaintiff, within seconds of the
officers’ arrival at the door to his apartment, approached them holding a large
knife.

[3]            
The jury trial of this action commenced on November 18, 2013 and
continued to December 19, 2013.

[4]            
On December 4, 2013, the action was dismissed against Sergeant Jeffrey
Clee and Constable Laura Dujmovic on their no evidence application.  On
December 13, 2013, Mr. Laktin, with the consent of the City of Vancouver
and Constable Coulthard, and without prejudice as to costs, discontinued his
action against Constable Coulthard.

[5]            
Under s. 20 of the Police Act, R.S.B.C. 1996, c. 367, the City of
Vancouver is liable for the torts of municipal police officers committed in the
course of their duties.  Section 21(2) provides that no action lies against a
police officer for acts or omissions in the performance of his or her duties
unless the officer is guilty of dishonesty, gross negligence or malicious or
willful misconduct.  When the plaintiff discontinued the action against
Constable Coulthard, it was common ground that, on the evidence adduced at
trial, that officer’s actions on January 21, 2006 did not involve dishonesty,
gross negligence, or malicious or willful misconduct within the meaning of s.
21(2) of the Police Act.  Accordingly, he was not a necessary party to
the action.

[6]            
The City of Vancouver defended this action in its own right, and on
behalf of the officers.

[7]            
On December 19, 2013, the jury rendered a verdict resulting in the
dismissal of the action against the remaining defendant, the City of Vancouver.

[8]            
Because the individual police officers remained defendants in this
action until late in the trial, I use the terms “defendant” and “defendants”
throughout these reasons as the context requires.

ISSUE

[9]            
The issue on this application is whether, notwithstanding the
defendant’s success in the action, the City of Vancouver should be deprived of
its costs.

POSITIONS OF THE PARTIES

[10]        
The City of Vancouver submits that the normal rule that costs follow the
event should apply in this case and that there is no basis for the Court,
acting judicially, to order otherwise.

[11]        
The plaintiff submits that three factors warrant a departure from the
general rule that costs should follow the event.  First, the plaintiff urges
the Court to take into account his personal and financial circumstances.  As a
result of the injuries he suffered when he was shot, Mr. Laktin is
confined to a wheelchair, suffers chronic pain and is permanently disabled from
employment.  The plaintiff has no source of income.  His wife, a registered
nurse, is now the sole provider for the plaintiff and their three daughters.

[12]        
Second, the plaintiff submits that the defendants should be denied their
costs as a result of the manner in which they conducted their defence at
trial.  During the trial, the defendants brought four unsuccessful applications
to strike the jury or to have a mistrial declared.

[13]        
On the first day of trial, after the jury was selected, the defendants
applied to strike the jury on the ground that the case raised questions of fact
and law which, when considered cumulatively, were of an intricate and complex
character so as to render the trial unsuitable for a jury.  The hearing of that
application continued to the end of the day, when the Court dismissed the
application, with written Reasons following on November 27, 2013, now indexed
as Laktin v. Vancouver (City), 2013 BCSC 2179.

[14]        
On November 21, 2013, the defendants applied for a mistrial based on the
plaintiff’s opening submissions.  Following a half-day hearing, the Court
dismissed that application with oral Reasons the following morning.

[15]        
On November 25, 2013, the defendants applied again for a mistrial, based
on an evidentiary ruling made by the Court during cross-examination of the
plaintiff’s wife.  That application occupied a full day and was dismissed with
oral Reasons the following morning.

[16]        
On December 17, 2013, the defendant applied for a mistrial for the third
time, based on the closing submissions of plaintiff’s counsel.  That
application also occupied a full day and was dismissed with oral Reasons the
following morning.

[17]        
The plaintiff also submits that throughout the trial the defendants made
numerous evidentiary objections, many of which were resolved in the plaintiff’s
favour following lengthy voir dires.

[18]        
The plaintiff’s third argument for a departure from the general rule
that costs follow the event is that the common law in British Columbia
regarding police use of force is not clear, and that it was in the public
interest for the plaintiff to bring this case.

[19]        
Mr. Laktin contends that in all of these circumstances, the Court should
order that the parties each bear their own costs.  Alternatively, the plaintiff
argues that any award of costs to the City of Vancouver should be reduced to
take into account the defendants’ various unsuccessful applications and
objections throughout the trial.

DISCUSSION

Legal Principles

[20]        
In Chen v. Beltran, 2011 BCSC 41 at paras. 6-10, Mr. Justice
Greyell summarized the principles relevant to an award of costs:

[6]  Costs generally follow the event.  That is, while this
Court retains discretion in the matter of awarding costs, a successful party is
generally entitled to the costs of prosecuting or defending the lawsuit as
indemnification for the costs incurred by being forced to do so by the
unsuccessful party.

[7]  Rule 14-1(9) reads:

14-4(9) Subject to subrule (12),
costs of a proceeding must be awarded to the successful party unless the court
otherwise orders.

[8]  Section 3(1) of the Negligence Act, R.S.B.C.
1996, c. 333, reads:

3(1) Unless the court otherwise
directs, the liability for costs of the parties to every action is in the same
proportion as their respective liability to make good the damage or loss.

[9]  In Bailey v. Victory (1995), 4 B.C.L.R. (3d) 388,
57 B.C.A.C. 23 (C.A.) Cumming J.A. stated for the Court of Appeal, at para 13:

The general rule, as set out in R.
57(9) [now Rule 14-9], is that costs follow the event.  The successful litigant
is entitled to costs as indemnification for the costs incurred in having been
forced into litigation.  The rules [sic] contain other provisions which show,
and recent cases have indicated, that the power of the court to award costs is
not limited to indemnification.  In appropriate cases awards for costs can be
made with a view to discouraging frivolous claims or defences and unnecessary
or abusive proceedings, to encourage prompt and early settlements, and, in
appropriate cases, to penalize improper conduct.  But through the Rules and the
decided cases runs one simple overriding principle which must not be lost sight
of – that is that discretionary exceptions to the general rule must be made
judicially.

[10]  More recently, in Catalyst Paper Corporation v.
Companhia de Navegação Norsul, 2009 BCCA 16, Hall J.A. stated that
different causes of action should not result in a different approach to the
assessment of costs because of the uncertainty such an approach would cause in
the law of costs.  He confirmed the general approach of the courts at para. 16
of his judgment:

[16] It seems to me that the trend of recent authorities is
to the effect that the costs rules should be utilized to have a winnowing
function in the litigation process.  The costs rules require litigants to make
careful assessments of the strength or lack thereof of their cases at
commencement and throughout the course of litigation.  The rules should
discourage the continuance of doubtful cases or defences.  This of course
imposes burdens on counsel to carefully consider the strengths and weaknesses
of particular fact situations.  Such considerations should, among other things,
encourage reasonable settlements.

[21]        
The court’s discretion to award or deny costs to a successful party must
be exercised judicially and on a principled basis connected to the conduct of a
party in the litigation: Currie v. Thomas Estate (1985), 19 D.L.R. (4th)
594 (B.C.C.A.); Smith et al v. City of New Westminster, 2004 BCSC 1304
at paras. 7-9.

[22]        
In Morris v. Doe, 2011 BCSC 1053 at para. 31, Madam Justice Ker
observed:

[31]  The parameters within which this exercise of discretion
is governed have been variously stated as:

·       
unless special circumstances can be established that would warrant
depriving the successful party of an award of costs following trial, the
successful party should receive their costs: Sutherland v. Attorney General
of Canada, 2008 BCCA 27, at paras. 26-27;

·       
a judge ought not to exercise their discretion against a successful
party except for some reason connected with the case or leading up to the
litigation: Currie v. Thomas Estate (1985), 19 D.L.R. (4^th)
549 at para. 47 citing the speech of Viscount Cave in Donald Campbell &
Co., Ltd. v. Pollak, [1927] A.C. 732 (H.L.), at p. 812.

[23]        
I turn now to the grounds advanced by Mr. Laktin for denying the
defendant an award of costs.

A.       The Financial Circumstances of the Plaintiff

[24]        
The plaintiff says that the defendants should be denied their costs on
the basis that his life was permanently and catastrophically altered by the
event of January 21, 2006 and his future care and financial support are now in
jeopardy. Mr. Laktin argues that the costs of a five-week trial will impose
an onerous financial burden, which the plaintiff lacks the means to satisfy.  I
accept that Mr. Laktin is in difficult financial circumstances, and that an
order requiring him to pay costs to the defendant will be a real and heavy burden
for him.  While I have a great deal of sympathy for the plaintiff, the case law
clearly establishes that the unfortunate personal circumstances and financial
hardship of a litigant are not, standing alone, factors warranting a departure
from the general rule that costs follow the event: Morris at para. 36; Chen
at para. 11; Vesuna v. British Columbia (Transportation), 2011 BCSC 1618
at para. 8.

[25]        
In Robinson v. Lakner (1998), 159 D.L.R. (4th) 191, the Court of
Appeal, reversing the decision of the trial judge who had limited the costs
payable to the successful defendant to $1,500 because the plaintiff was in
difficult financial circumstances, held at para. 5, that “financial hardship in
itself is not a sound basis for departing from the usual rule with respect to
costs”.

[26]        
In Cowherd v. Fraser Valley Health Region et al, 2004 BCSC 698 at
para. 5, Madam Justice Ballance cited Brown v. Blacktop Cabs Ltd.
(1997), 43 B.C.L.R. (3d) 76 (C.A.); Zelenski Estate v. Fairway (1998),
60 B.C.L.R. (3d) 76 (C.A.); Churchland v. Gore Mutual Insurance Co.
(unreported), September 23, 1999, No. S09912, Vancouver (S.C.); and Robinson
for the principle 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”.

[27]        
In Morris at para. 38, Madam Justice Ker concluded that the court
is unable, on any principled basis to take the plaintiff’s financial
circumstances into account in determining whether to award costs.

[28]        
At para. 39, Her Ladyship cited the following passage from the Reasons
for Judgment of Greyell J. in Chen at para. 15:

[39]  To do otherwise would lead to inconsistent and no doubt
unreasonable results. As Greyell J. so eloquently noted in Chen at para.
15:

[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.

[29]        
I conclude that the plaintiff’s difficult personal circumstances and
financial hardship, standing alone, do not provide grounds for the Court to
depart from the normal rule that costs should follow the event.

B.       The Conduct of the Defence

[30]        
The discretion of the court to deny a successful party costs may be
exercised “in relation to conduct that manifestly warrants rebuke”, rather than
in relation “less than optimal” conduct or “questionable judgement”: LeClair
v. Mibrella Inc., 2011 BCSC 533 at paras. 11 and 29.

[31]        
This was a hard-fought case litigated before a jury over five weeks. 
The stakes were high for both parties.  Mr. Laktin and the defendant were each
represented by counsel with considerable experience in the conduct of actions
concerning the police use of force.  Relations between counsel were at times
acrimonious.

[32]        
The defendant was unsuccessful on its application to strike the jury and
on each of the three applications for a mistrial.  However, I am unable to
conclude that any of those applications were frivolous or vexatious, inordinately
protracted the trial, were calculated to drive up the plaintiff’s costs, or
otherwise constituted unfair conduct on the part of the defendant in the course
of the litigation, or that the defendant’s conduct of the litigation otherwise
warranted the court’s rebuke.

[33]        
 On the application to strike the jury, I determined that finding the
facts concerning the sequence of events that culminated in Constable Coulthard
shooting the plaintiff, and determining whether the force used by the police
was justified in all of the circumstances were tasks well suited to a jury. 
Nonetheless, the case did involve a level of complexity.  Expert evidence
concerning the police use of force and questions of fact and law relating to
the various common law and statutory defences to the plaintiff’s claim of
battery available to the defendant were all in issue.  While some of the
grounds advanced by the defendants on the first and third mistrial applications
relating to the opening and closing addresses of plaintiff’s counsel may have
involved “questionable judgement” on the part of defence counsel, none of the
defendant’s applications were so ill-founded as to warrant depriving the
defendant of its costs.

[34]        
Both parties advanced their respective cases with vigour.  Each party
raised objections to the admissibility of portions of their opponent’s expert
or documentary evidence.  Each party enjoyed mixed success on those
applications.

[35]        
I find there was no conduct on the part of the defendants in the course
of the litigation that would warrant denying the City of Vancouver its costs as
the successful party.

[36]        
Finally, Rule 14-1 (12)(b) will preclude the defendants from receiving
the costs of applications they brought that were refused.

[37]        
 The relevant provisions of Rule 14-1(12)(b) are:

12 Unless the court hearing an application otherwise orders,

(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 ….

[38]        
Thus, the defendants will not have the costs of their applications to
strike the jury or to declare a mistrial, or of any other application brought
by the defendants where the application was refused, unless the court hearing
that application ordered otherwise.

C.       The Plaintiff’s Public Interest Submission

[39]        
I am not persuaded that this is an appropriate case for the court to
exercise its discretion against an award of costs to the successful party on
the basis that the plaintiff brought this action in the public interest.

[40]        
In British Columbia (Minister of Water, Land & Air Protection) v.
British Columbia (Information and Privacy Commissioner), 2005 BCCA 368 at
para. 8, the Court of Appeal referred to the factors identified by the Ontario
Law Reform Commission in its Report on the Law of Standing, (Toronto:
Ministry of the Attorney General, 1989) as relevant to determine the
circumstances where costs should not be awarded against a person who brings
public interest litigation.  Those factors are:

(a)      the importance of the issue raised extends
beyond the immediate interest of the parties involved;

(b)      the unsuccessful party has no personal,
proprietary or pecuniary interest in the outcome of the proceeding, or, if he
or she has an interest, it clearly does not justify the proceeding
economically;

(c)      the issues have not been previously
determined by a court in a proceeding against the same defendant;

(d)      the defendant has a clearly superior capacity
to bear the costs of the proceedings; and

(e)      the
plaintiff has not engaged in vexatious or abusive conduct.

[41]        
The Court of Appeal emphasized that these are factors that may guide a
court in the exercise of its discretion, but do not constitute a checklist, or
fetter the court’s discretion to determine whether the normal rule is
unsuitable on the facts of a particular case.

[42]        
Here, there is no question that the City of Vancouver has a clearly
superior capacity to bear costs.  Mr. Laktin has not engaged in any vexatious
or abusive conduct.  Rather, he has pursued a claim for financial compensation
for the serious and life-altering injuries he sustained as a result of the
events of January 21, 2006.

[43]        
The issue of the legal test that applies to determine whether a police
officer is justified in the use of force in the course of his duties has been
previously determined in proceedings against the City of Vancouver: see, for
example, Berntt v. Vancouver (City) (1999), 63 B.C.L.R. (3d) 233 (C.A.).

[44]        
Mr. Laktin had a personal and pecuniary interest in this proceeding. 
The plaintiff brought a claim which, if successful, would have provided him
with substantial financial compensation for his personal injuries.  The
defendant, City of Vancouver, would have incurred the financial costs of that
award.

[45]        
Here, the plaintiff chose trial by jury.  The critical questions for the
jury were whether Constable Coulthard was justified in all of the circumstances
in using force against Mr. Laktin, and whether Constable Coulthard used only as
much force as was reasonably necessary in all of the circumstances.  The jury
answered both of those questions in the affirmative, which resulted in the
dismissal of the plaintiff’s action.

[46]        
A jury verdict, whether affirmative or negative, establishes no binding
legal precedent.

[47]        
 Although a jury verdict on police use of force may serve to inform both
the police and the public about the limits of police action in a particular
case, and thereby serve the public interest, this was in essence an action
brought to recover damages for the personal injuries suffered by Mr. Laktin, and
in pursuit of his legitimate private interests.

[48]        
Taking all of these factors into account, and in particular the nature
of  the plaintiff’s personal interest in this action, I find this is not a
suitable case to deny the successful party costs on the ground that the
proceeding was brought in the public interest.

CONCLUSION

[49]        
I conclude that there are no special circumstances in this case that
would warrant a departure from the general rule that costs should follow the
event.

[50]        
Accordingly, the defendant, City of Vancouver, will have costs of this
action at Scale B, together with its reasonable disbursements.

“PEARLMAN J.”