Wan v. Smith Estate, 2013 BCSC 205

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Wan v. Smith Estate, 2013 BCSC 205 Date: 20130208 Docket: 10-0942 Registry: Victoria Between: Sarah Wan Plaintiff And Frank Smith and Darryl Falconer and John Doe as the Administrator/Executor of the Estate of Frank Smith Defendants Before: The Honourable Mr. Justice R. Punnett Reasons for Judgment Counsel for the Plaintiff: S.P. Casey Counsel for John Doe as Administrator: S.J. Harper Place and Date of Hearing: Victoria, B.C. January 8, 2013 Place and Date of Judgment: Victoria, B.C.

February 8, 2013 [ 1 ] In this fast track personal injury claim the plaintiff applies for an order for “directions and/or settlement of the plaintiff's costs”. The action is subject to rule 15-1 of the Supreme Court Civil Rules . Background [ 2 ] The plaintiff was involved in a motor vehicle accident on March 27, 2008. The trial was set for May 7, 2012 under Rule 15-1, the Fast Track Litigation process. Plaintiff’s counsel and defence counsel attended at the courthouse for trial.

At approximately 10:00 a.m. on the morning of trial defence counsel presented a new offer of $60,000 in new money plus costs and disbursements. As a trial judge was not available the trial was adjourned; however, shortly thereafter another trial judge became available. In the meantime, the plaintiff accepted the settlement offer. Plaintiff’s counsel sent a letter to defence counsel confirming the settlement in the sum of $60,000 in new money plus taxable costs and disbursements. [ 3 ] It is common ground that the letter accepting the offer did not particularize or qualify the issue of costs in any manner.

It is also common ground that the parties were prepared to proceed to trial that morning. [ 4 ] After accepting the offer plaintiff's counsel presented a draft bill of costs totalling $17,067.31 under

Schedule B, not Rule 15-1. Defence counsel objected on the basis that costs were payable under Rule 15-1 not the standard tariff. [ 5 ] It is not disputed that the terms of settlement were that the action be dismissed with costs to the plaintiff. To date an order has not been prepared or entered. Defence counsel confirms that they will consent to an order on the settlement terms. Position of the Plaintiff [ 6 ] The plaintiff acknowledges that the terms of settlement were clear, but despite this asks the court to settle the issue of costs.

That is, the plaintiff argues that this Court can exercise its discretion on the issue of costs notwithstanding the clear terms of settlement and, further, that an application of this nature can be made despite the fact that the normal procedure is to enter the order and tax the costs before the registrar. The plaintiff seeks an order of this Court that the plaintiff is entitled to costs that include the first day of trial. Position of the Defendants [ 7 ] The defendant objects to the procedure taken by the plaintiff in bringing this motion.

She submits that before an argument can be made as to assessment of costs, an entered order is required first to trigger an appointment to tax costs. She submits the plaintiff is

attempting to have this Court re-write the terms of settlement by intervening before the order is entered. The gist of her submission is that this Court has no jurisdiction to entertain the plaintiff’s application because the settlement terms were unambiguous. [ 8 ] She also submits that under Rule 15-1 where the trial has not commenced the cap for costs is $6,500 and that the plaintiff is not entitled to any amount for the first day of trial ( Gill v. Widjaja, 2011 BCSC 951 ). Discussion [ 9 ] Rule 14-1 (21) addresses the issue of the assessment of costs as follows:

(21) Except as provided in subrule (26), a person who seeks a review of a bill or an examination of an agreement under the Legal Profession Act or who seeks to have costs assessed must (

a) obtain a date for an appointment before a registrar, (

b) file an appointment in Form 49 to which is attached (

i) the bill to be reviewed, (ii) the agreement to be examined, or (iii) the bill of costs to be assessed, and (

c) at least 5 days before the date of the appointment, serve a copy of the filed Form 49 appointment and any affidavit in support, (

i) in the case of a bill to be reviewed, on the lawyer whose bill is to be reviewed, on the person who is charged with the bill or on the person who has agreed to indemnify the person charged, as the case may be, (ii) in the case of an agreement to be examined, on the lawyer who is a party to the agreement to be examined, or (iii) in the case of a bill of costs to be assessed, in accordance with subrule (25). [ 10 ] As noted earlier, instead of applying to have costs assessed, the plaintiff brings this application. In doing so the plaintiff relies on Rule 14-1(1) and 15-1(15). [ 11 ] Rule 14-1 provides:

(1) If costs are payable under these Supreme Court Civil Rules or by order, those costs must be assessed as party and party costs in accordance with Appendix B unless any of the following circumstances exist: … (

e) a notice of fast track action in Form 61 has been filed in relation to the action under Rule 15-1, in which event Rule 15-1(15) to (17) applies; … [ 12 ] Given the action is a fast track action Rule 15-1(15) applies:

(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. [ 13 ] It is not disputed that the fast track rule governs. The plaintiff asks the court to exercise its discretion under the fast track rule. Her counsel refers to the wording in 15-1(15) “unless the court otherwise orders” in support. The defendant submits that the reference to “the court” in that

section is a reference to the trial court not this Court in chambers. That is that cost awards are within the discretion of the trial court. Further they submit that the offer and its acceptance were clear and the costs referenced in the settlement are to be awarded pursuant to Rule 15-1. [ 14 ] The difficulty with the plaintiff’s submission is counsel’s letter confirming settlement responds to the defendant’s offer of costs. That offer was clearly for costs under the fast track rule. In my view the plaintiff cannot now seek to redefine what was meant by “costs”.

It is inappropriate for the court to now vary the agreed upon terms of settlement. [ 15 ] As a result since the parties cannot agree on whether the plaintiff is entitled to costs for the first day of trial, the order evidencing the agreed upon settlement should be entered and the matter taxed. It is at the taxation that the plaintiff can address the issue of any deviation from the cap. [ 16 ] As a result I need not address the issue of whether the plaintiff was entitled to costs for the May 7, 2012 date of trial.

[ 17 ] The defendants are entitled to their costs of this application. “Punnett J.”