24 Jul Plaintiff Awarded Costs
In Fong v. British Columbia (Minister of Justice), 2019 BCSC 969, the Plaintiff sought costs following a trial for injuries he suffered as a result of a “hard takedown” arrest by RCMP. At trial he sought damages of about $1.3 million and the judge awarded him damages of $71,129.34. The Plaintiff subsequently presented a bill of costs to the Defendant totaling approximately $169,500.
Costs are dealt with in Rule 14-1 of the Supreme Court Civil Rules. The Rules provide that costs must be awarded to the successful party unless the court otherwise orders. A judge has the power to direct that any item of costs, including disbursements, be allowed or disallowed. A judge also has authority to award or deny costs for a particular application, step or matter relating to the proceeding.
The Defendant sought an order limiting or denying costs relating to the evidence of the Plaintiff’s medical witnesses, which had not been accepted by the Court because the Plaintiff had not informed them of important matters relevant to his physical and mental health. This impacted the usefulness of other expert reports which relied on assumptions that were rejected by the Court. The Defendant also argued that the Plaintiff was guilty of misconduct in the litigation and had been unsuccessful on discrete issues, so the judge could deprive him of costs and disbursements relating to those items.
The Plaintiff emphasized that he had been successful in the action. Accordingly, the usual rule should apply and he should be awarded costs. He submitted this was an ordinary personal injury case, and in such cases it is common that a plaintiff might fall short, even well short, of the amount claimed, but still be entitled to costs.
The Plaintiff argued that there were no discrete issues in this case and no misconduct on his part. The objections and applications heard during the trial were part of the ordinary ebb and flow of a trial. As to the alleged misconduct on the part of the Plaintiff, while he undoubtedly has some personality issues which affected his view of events, he did not intentionally mislead the Court.
Although the Judge found that the Plaintiff was not a credible witness at trial, he did not conclude he was lying to the Court or that he deliberately failed to tell physicians and experts about other negative events in his life to enhance his personal injury claim. Rather, the judge concluded that the Plaintiff likely believed that all of his troubles were attributable to the police arrest and assault. Further, the judge concluded that all of the damages issues were part of an essentially indivisible whole.
The Defendant noted that two witnesses, a family doctor and a chiropractor, testified as lay witnesses, yet the Plaintiff claimed costs as if they were experts. The judge agreed that any costs claimed for these witnesses on the basis that they were experts should be disallowed.
Although he disallowed certain specific items of costs, the judge dismissed the Defendant’s application for an order limiting or apportioning the Plaintiff’s costs generally.