Panaich v. Abbotsford Truck & Trailer Repair Ltd. Date:, 2016 BCPC 180

Citation: Panaich v. Abbotsford Truck & Trailer Repair Ltd. Date: 20160517 2016 BCPC 0180 File No: 21256 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims Court BETWEEN: JAIINDER PANAICH CLAIMANT AND: ABBOTSFORD TRUCK & TRAILER REPAIR LTD. DEFENDANT RULING ON APPLICATION OF THE HONOURABLE JUDGE K.D. SKILNICK Counsel for the Claimant: P.P.S. Sahota Counsel for the Defendant: V.K. Bajpai Place of Hearing: Abbotsford , B.C. Date of Hearing: May 17, 2016 Date of Ruling: May 17, 2016 [ 1 ] THE COURT : This is an application brought by the defendant for an assessment of costs in this action.

[ 1 ] THE COURT : This is an application brought by the defendant for an assessment of costs in this action. [ 2 ] Normally, I will address costs when I make an order for a judgment, but in this case the parties, in their submissions, said that they wanted to address costs separately and, pursuant to the judgment, I gave counsel leave to bring this application for costs and counsel are here today. [ 3 ] Mr.

Bajpai has set out in a letter marked as Exhibit K to the affidavit of his client the costs that are being sought and the majority of those costs are being disputed by the claimant. [ 4 ] As counsel have pointed out, there are specific sections of the Small Claims Act and the Small Claims Rules that guide the court in what costs can be awarded in a Small Claims action.

I start with s. 2 which says that: The purpose of this Act and the rules is to allow people who bring claims to the Provincial Court to have them resolved and to have enforcement proceedings concluded in a just, speedy, inexpensive and simple manner. I highlight the word "inexpensive", of course, because, on the one hand, the purpose of Small Claims Court is to be less costly than having parties proceed in the Supreme Court. On the other hand, I think that has to be tempered with reason because sometimes even in Small Claims Court, it costs money to pursue a claim.

In a claim such as this where both parties needed expert evidence to prove their claim or assert their defence, there has to be some allowance made for reasonable costs. [ 5 ]

Section 19 of the Act is a little more specific about what costs can be claimed under the Act.

Section 19 starts with the provision in (1) that this court can determine, in accordance with the rules, the amount of costs payable and then it goes on to give some further guidelines. In (3), it says that: If the rules provide for a reasonable fee, charge or other expense, the Provincial Court or a registrar of the court may determine what amount is reasonable . Subsection (4) is important because it says that in making an order of costs I cannot compensate a party for what is owing to pay their lawyer to pay counsel or solicitor's fees. [ 6 ] Rule 20 is more specific yet on costs.

It says that the successful party normally receives filing and service fees and it also says that a judge can determine the amount of expenses that are payable. Rule 20(

c) says that the successful party can be entitled to: ...any other reasonable charges or expenses that the judge considers directly relate to the conduct of the proceedings. [ 7 ] There are a couple of other sub-rules that I will address separately. [ 8 ] In this case, I am going to address the costs in the order that Mr. Bajpai set them out in his letter of May 3rd, 2016. First of all, he seeks that costs be fixed for the application, it says August 16th, 2014, but I think he actually meant August 16th, 2013. On that day, the parties appeared before Judge Caryer and Judge Caryer made this determination.

First of all, after deleting portions of an affidavit that was filed, he directed that the claimant was to provide some further documentation, including truck logs and telephone records on or before September 30th and he directed that there were costs to be assessed but left the assessment of those costs to the trial judge. [ 9 ] In making the claim for the costs, there was some allusion made to the cost to counsel's fees for having to attend and, of course, I cannot compensate for that.

There was some allusion made to the fact that both parties had to take time off work to come to court and, again, the case law is quite clear that costs are not meant to compensate litigants for having access to the court but there is an amount that is set and usually that is left in the discretion of the court, taking into account that the general guidance that proceedings should be inexpensive in this court as opposed to what they might otherwise be in the Supreme Court. [ 10 ] The parties appeared in front of Judge Brown in September of 2014 and, again, Judge Brown, while he found that he could not make an order with respect to reimbursement of a $100 late filing fee, granted an application to adjourn the trial and, again, sent the issue of costs down the road to be determined by the trial judge. [ 11 ] I make my same comments that, in making an order for costs, I cannot compensate the parties for having to pay their lawyers.

I cannot compensate them for having to attend court and take time off work. The usual order for costs for an application of this nature, it is rare that I would award the $1,000 that is claimed. I think, taking into account the circumstances of those applications, the defendant is entitled to some costs for both of those applications but not in the amount claimed.

I am going to award the defendant $250 in respect of each of those applications so rather than the $1,000 claimed in each, the $2,000 in total, it will be a total of $500, $250 for each application, that being one before Judge Caryer and the one before Judge Brown. [ 12 ] In addition, it is unfortunate that the application could not have been heard sooner before the $100 cost was assessed to the defendant and I am going to order that the $100 late adjournment fee be included in the costs that I will be awarding to the defendant. [ 13 ] The costs of today's application, there is a claim for $1,000.

I am not going to make an order with respect to costs and the reason being that when I conclude my reasons on the other matters, there is going to be divided success in respect of this application. There are some matters in which I agree with the defendant that the defendant is entitled to costs; there are other matters in which I agree with the claimant, that the costs claimed are not allowable. Therefore, I am going to make no order as to costs with respect to today's application.

[ 14 ] The next item is the Rule 20(5) costs and that rule says that a judge can order a party to pay the other party up to 10 percent of the amount claimed for the value of the claim or counterclaim if the party made a claim that proceeded through trial with no reasonable basis for success. I do not find that that rule applies here. I think the fact that the claimant brought this claim armed with an opinion from the expert, Mr. Schlitt, who I found was certainly a credible expert, while I did not conclude that the conclusions that Mr.

Schlitt came to rested liability on the defendant, I, nevertheless, can understand why the claimant proceeded with this claim, having obtained the expert opinion that it did have. I do not find that this is a case where the claimant brought a claim that had no reasonable basis for success and, therefore, I am not allowing the claim for costs under Rule 20(5). [ 15 ] The costs under Rule 10.1 are a separate issue. There was an offer to settle that was open for a very brief window of time. I note that the offer was made on July 22nd, although Mr.

Sahota has provided evidence that indicates that he did not receive word of that until a fax that was received on July 25th. Nevertheless, the offer said originally that it was open for three months but, subsequently, as Mr.

Sahota points out, that offer was withdrawn by the end of the month, or on August the 1st, so it was a very brief window. [ 16 ] In my view, an offer under Rule 10, there has to be a reasonable period of time or a significant period of time for the defendant to accept that offer for the defendant to assess the offer and say, "You know, it might be wise under the circumstances that I accept that offer." I note that at this point in time, there had not been disclosure of the full expert's opinions and, in particular, Mr. Crackman's opinion.

I note that on the jurisprudence that appears in the annotated version of the Rules, there are other reasons why the offer to settle does not qualify under s. 10. [ 17 ] There are a number of case authorities from the Supreme Court, as well as from Judge Phillips of this court, that indicate that where offers to settle are passed pursuant to without prejudice correspondence, that does not apply with Rule 10 and Judge Phillips in her decision in GMA Machinery Canada Limited v.

Cartocci Imports Ltd. , indicates that for the rule to apply the procedures in Rule 10.1 has to be followed. [ 18 ] I am less concerned about the formalities but I am concerned of the fact that there was such a narrow window for acceptance of the offer that I cannot fault the claimant for not accepting the offer within the narrow window of opportunity that was open for it and, therefore, I am not allowing the claim for costs under Rule 10.1. [ 19 ] In my view, all of the remaining costs, that is, the court filing fee, the Dye and Durham costs, the Legal Alternative costs and the Canada Post costs, and I will deal with the expert separately, but those costs are certainly contemplated by the rule; they are reasonable, they are not excessive.

The defendant, as the successful party, is certainly entitled to those costs. [ 20 ] With respect to the expert witness fees, initially I had some reservation about those costs because I was not certain whether or not those costs have actually been paid but, as Mr. Bajpai points out, his client has attested in an affidavit that the costs have, in fact, been paid to Mr. Crackman. I agree with Mr. Sahota that it certainly would have been helpful if the cancelled cheque or some other proof had been provided but, on the other hand, as Mr.

Bajpai points out, that statement was made in an affidavit which was provided earlier on to the claimant and there was no indication that that payment was going to be in dispute. As a result of that, I do not disallow the expert's fees on that ground. [ 21 ] The expert's fees certainly are not an unreasonable amount given the issues which were at stake here. While this is not an insignificant amount, it is certainly well within the range of expert's fees allowed.

In a case like this where there is an issue of mechanical negligence and a claim like this simply cannot be proven or disputed on the basis of a judge's knowledge alone, this case does reasonably require an expert and I think it is reasonable that the successful party be compensated for reimbursement of the expert. [ 22 ] To summarize, I am going to allow costs but in a significantly lesser amount than the defendant has asked for. The defendant has asked for costs in the amount of $11,216.25. I am going to allow the defendant their costs in the amount of $4,078.21.

I am going to break that down as follows and somebody can double-check that my math is accurate here. [ 23 ] The costs of the August 16th, 2013, application, I am going to award costs in the amount of $250. [ 24 ] The costs of the September 18th, 2014, application, I am going to award costs in the amount of $250. [ 25 ] I am not going to award costs for this application today. [ 26 ] I am going to award the defendant reimbursement of the late adjournment fee of $100. [ 27 ] I am not awarding the defendant costs under Rule 20(5) or under Rule 10.1. [ 28 ] I am going to award the defendant the filing fees of $50, the Dye and Durham filing service fees of $34.71, the Legal Alternative fee of $2.50, the expert witness fees of $3,360 and the Canada Post registered mail fee of $21.00.

K.D. SKILNICK Provincial Court Judge