Austin v. Lynch, 2016 BCSC 2221

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Austin v. Lynch, 2016 BCSC 2221 Date: 20161129 Docket: 18088 Registry: Terrace Between: Robin Austin Plaintiff And James M. Lynch and Michael Brousseau Defendants Before: The Honourable Mr. Justice Punnett Reasons for Judgment Costs Counsel for the Plaintiff: R.D. McConchie Counsel for the Defendant James M. Lynch: G.L. Crampton Defendant Michael Brousseau: In Person Place and Date of Trial: November 4, 2016 Terrace, B.C. Place and Date of Judgment: Terrace, B.C.

November 29, 2016 [ 1 ] The plaintiff seeks his costs and disbursements from the defendant James Lynch at Scale B. Mr. Lynch opposes the award seeking apportionment of costs based on divided success on certain issues at trial. The defendant Michael Brousseau seeks his costs given the plaintiff’s claims against him were dismissed. Background [ 2 ] This is a defamation action. After a nine day trial the defendant James Lynch was found to have defamed the plaintiff as a result of certain words spoken by him at an all-candidates meeting during the 2013 provincial election.

Reasons for judgment are reported at 2016 BCSC 1344 . Position of the Plaintiff [ 3 ] The plaintiff submits that as the successful party he is entitled to his costs without apportionment given he was successful in establishing his claim for defamation and while unsuccessful in his claim for malice such a claim was not frivolous. He acknowledges the defendant Michael Brousseau successfully defended the claim against him and is entitled to his costs although the plaintiff raises issues relating to the appropriate scale of costs respecting that defendant and certain disbursements incurred by the plaintiff.

Position of the Defendant James Lynch [ 4 ] The defendant James Lynch submits that by alleging what he described as an unsuccessful claim of common design or conspiracy to defame between James Lynch and Michael Brousseau the plaintiff prolonged the trial. The defendant James Lynch further submits that there was no reasonable basis to advance that claim, that it was a separate and distinct issue and that it would be manifestly unfair to burden the defendant James Lynch with the costs relating to that failed claim.

Position of the Defendant Michael Brousseau [ 5 ] As a successful self-represented defendant Michael Brousseau seeks his costs at Scale B.

Law [6] The Court of Appeal in Giles v. Westminster Savings and Credit Union, 2010 BCCA 282, at para. 74, addressed the purposesof costs as “[i]n addition to indemnifying a successful litigant”:

a) Deterring frivolous actions or defences;

b) Encouraging conduct that reduces the duration and expense of litigation and to discourage conduct that has the opposite effect;

c) Encouraging litigants to settle whenever possible, thus freeing up judicial resources for other cases; and

d) To have a winnowing function in the litigation process by requiring litigants to make a careful assessment of the strength or lackthereof of their cases at the commencement and throughout the course of the litigation, and by discouraging the continuance of doubtfulcases or defences. [7] Pursuant to Rule 14-1(9), costs in a proceeding must be awarded to the successful party unless the court otherwise orders. TheCourt in Loft v.

Nat, 2014 BCCA 108 noted at para. 46 that “[a]t its most basic level the successful party is the plaintiff who establishesliability under a cause of action and obtains a remedy, or a defendant who obtains a dismissal of the plaintiff’s case”: see also ServiceCorporation International (Canada) Ltd. (Graham Funeral Ltd.) v. Nunes-Pottinger Funeral Services & Crematorium Ltd., 2012 BCSC1588 at para. 11. [8] Generally, the “rule of costs stipulates that absent special considerations, a successful litigant has a reasonable expectation ofobtaining an order for the payment of his costs”: see Sutherland v.

The Attorney General of Canada, 2008 BCCA 27 at para. 26. [9] In Robbins v. Pacific Newspaper Group Inc., 2006 BCSC 872 at para. 17, Mr. Justice Williamson stated that where a plaintiffclaims he or she was defamed, and a court found he or she was, then generally speaking the successful plaintiff is entitled to an order forcosts even where he or she did not succeed on every issue. [10] The Rule in respect of a discretionary apportionment of costs is Rule14-1(15):

(15) The court may award costs (

a) of a proceeding, (

b) that relate to some particular application, step or matter in or related to the proceeding, or (

c) except so far as they relate to some particular application, step or matter in or related to the proceeding and in awarding those costs the court may fix the amount of costs, including the amount of disbursements. [11] This Rule, likes its predecessor, Rule 57(15) of the Rules of Court, allows a judge to award costs in respect of a discrete issue inlitigation. Such discretion remains at least as broad as it was under the former rule: see Lee v. Jarvie, 2013 BCCA 515 at paras. 39-40. [12] In Sutherland at para. 30, the British Columbia Court of Appeal paraphrased Esson J.A. in British Columbia v.

Worthington(Canada) Inc. (1988), (BC CA), 29 B.C.L.R. (2d) 145, the leading case on the application of Rule 57(15), now Rule14-1(15), affirming that the discretion of trial judges under Rule 57(15) is very broad, and must be exercised judicially, not arbitrarily orcapriciously and that “[t]here must be circumstances connected with the case which render it manifestly fair and just to apportion costs”(emphasis added). [13] The Court in Sutherland at para. 31, stated the test for the apportionment of costs under Rule 57(15), now Rule 14-1(15) asfollows: [31] … (1) the party seeking apportionment must establish that there are separate and discrete issues upon which the ultimatelyunsuccessful party succeeded at trial; (2) there must be a basis on which the trial judge can identify the time attributable to the trial of these separate issues; [and] (3) it must be shown that apportionment would effect a just result. [14] This has been subsequently affirmed in Lee at para. 40. [15] It has been noted, however, that an order under this

section is not a “regular part of litigation and should be confined torelatively rare cases” and that an order for apportionment in any particular case will be dependent on the circumstances of that individualaction: Loft at para. 49. [16] In Sutherland, the Court refused the plaintiff’s request for apportionment and awarded full costs to the defendants. Although theplaintiff successfully established the tort of nuisance, the defendants met the onus of establishing the defence of statutory authority, acomplete answer to the plaintiff’s claims.

The Court noted a party might prolong a case unnecessarily by: (1) raising an unnecessaryissue; or (2) by raising a spurious or unsupportable defence to an issue raised by another party; or (3) by over-litigating an issue properlyraised by either party. The Court stated that in such cases it would be unfair to an unsuccessful party to pay costs for issues raised orprolonged unnecessarily by the other party (para. 35).

[ 17 ] The plaintiff in Sutherland claimed that the defendants unduly prolonged the proceeding by unnecessarily litigating the issue of nuisance, which the plaintiff was successful on. The Court rejected this argument, noting at paras. 36 and 39 that:

a) the defendants did not introduce the issue of nuisance into the litigation;

b) that in fact the defendants sought to litigate the defence of statutory authority first in order to avoid a trial on the issue of nuisance;

c) that the defendants did not over-litigate the issue of nuisance; and

d) that the defendants were entitled to defend, by all lawful means, against their alleged liability. [ 18 ] Accordingly, such circumstances weighed against a finding that apportionment of costs was needed to effect a just result. [ 19 ] Robbins was a defamation case. The plaintiff while successful at trial did not prove all of his allegations. Two groups of media defendants, described as the print media and the broadcast media, were represented by the same counsel. The allegations against the broadcast media were dismissed.

The defendants argued that there was no evidentiary foundation for the claim of malice and that but for this unsuccessful claim the trial would have been much shorter. In rejecting this as a basis for ordering apportionment of costs, the Court noted that the claim, although unsuccessful, was not frivolous. The Court ultimately concluded at paras. 30-31 that: [30] This is one of those cases which might charitably [be] described as “hard fought”. Having presided over the lengthy trial, I conclude that both sides from time to time acted in such a way as to extend the length of the proceedings.

The plaintiff did so by persisting in the malice allegation and the various aspects of the evidence which, among others, he submitted supported that allegation. … [31] That being said, each party having conducted themselves in a similar manner, I see no reason to part from the usual rule with respect to costs, articulated in Rule 57(9) [now Rule 14-1(9)]. … [ 20 ] In Thom v. Canada Safeway Limited , 2015 BCSC 2026 , the plaintiff succeeded on a claim for wrongful dismissal.

The defendant argued that, given that success on the discrete damages issues was divided between the parties, neither should be viewed as being the “successful party,” or in the alternative, that the plaintiff’s costs should be reduced on account of the time spent on issues on which the plaintiff did not prevail — including aggravated damages, punitive damages, and a claim for breach of privacy. The Court rejected both of those arguments. In doing so the Court noted much of the evidence that was of primary relevance to an unsuccessful claim was also relevant to the main issue of wrongful dismissal.

Moreover, the Court held that to the extent that trial time was devoted to discrete issues on which the plaintiff did not prevail, the Court “would not find that the interests of justice require apportionment” and that in “[a]pplying the test from Sutherland , it cannot be said that the plaintiff, with respect to those issues, over-litigated or unduly prolonged the trial” (paras. 28-29). [ 21 ] Moreover, the Court in Thom recognized that in considering whether the length of trial was disproportionate compared to the damages awarded, it was clear that for both parties there was more at stake than just money.

The plaintiff, for example, may well have been seeking a measure of vindication. The Court stated that “[i]t would not be appropriate to judge the proportionality of the trial length solely with regard to the size of the damages award” (para. 31). [ 22 ] In Hunter v. Chandler, 2010 BCSC 1124 , the Court did not order that costs be apportioned. The plaintiff alleged two separate defamatory statements made by two different defendants. Both statements were found to be defamatory, but the statement to one of the defendants was found to have been made under qualified privilege.

The plaintiff was also unsuccessful in his claim for aggravated and punitive damages. [ 23 ] The unsuccessful defendant argued that in light of the divided success, costs should be apportioned.

The unsuccessful defendant argued that apportionment should be ordered for the following reasons: (1) the alleged defamation by the successful defendant was a distinct issue that required significant evidence and presented different issues in argument; and (2) the unsuccessful defendant was successful in its defence against claims for aggravated and punitive damages. [ 24 ] The Court rejected this argument and stated at para. 17: [17] In my view despite the defendant’s success with respect to these issues this is not one of the rare cases in which apportionment of costs would be appropriate.

There was, as in Lewis, nothing extraordinary about this case. The issue of the April statement to Mr. Chad was in some respects a distinct issue, involving evidence with respect to what was said, the circumstances surrounding the statement and distinct arguments with respect to qualified privilege. However, there was considerable overlap with the statement made to Mr. Johnson in terms of the background to the issue, a matter that occupied a significant amount of the time at trial. The claims that did not succeed were not in any sense frivolous.

In my view, apportionment of damages would not produce a just result. … Discussion [ 25 ] The plaintiff applicant claimed defamation at trial and this Court found that he was so defamed. He was the successful party and is entitled to his costs under Rule 14-1(9). The defendant James Lynch asserts that cost should be apportioned by denying the plaintiff his costs associated with the issue of “common design,” or conspiracy and that the plaintiff should be ordered to pay to the defendant James Lynch the costs associated with that common design allegation.

He submits that the allegations respecting common design amount to a separate tort and were unnecessary in order for the plaintiff to establish his claim and obtain damages. He submits as well that there was a lack of evidence of common design, both defendant’s had denied it on discovery, and that the plaintiff was reckless to pursue it. He notes that costs have a winnowing function requiring that plaintiffs carefully assess their case such that doubtful claims are not pursued. [ 26 ] The manner in which the defendant James Lynch characterizes the claim involving him and Michael Brousseau is more

accurately described in the plaintiff’s amended notice of civil claim as a claim of joint publication as follows: 8. The defendant Brousseau incited, assisted and/or encouraged the defendant Lynch to publish the April 30, 2013 Statements at theAll Candidates’ Meeting and he is therefore in fact and in law the joint publisher of the April 30, 2013 Statements. … 10.

The defendants were actuated in publishing the defamatory expression complained of in this amended notice of civil claim, byexpress malice: a. for the dominant purpose of destroying or damaging the plaintiff’s prospects of re-election as the MLA for Skeena in furtheranceof a common design; … … [27] As a result no independent tort of conspiracy was in fact pleaded. [28] While the claim of malice was not successful, the evidence of common design had it been proven could have been a factorcontributing to a finding of actual malice. [29] The first two criteria noted in Sutherland respecting a discreet issue and a basis for assessing the time involved with respect tothose issues are met in this instance.

However, in order to obtain an order for reapportionment the Court must also find as noted inSutherland that “apportionment would effect a just result”. The Court in Sutherland also noted at para. 30 that “[t]here must becircumstances connected with the case which render if manifestly fair and just to apportion costs”. [30] Mr.

Lynch suggests that for him to pay costs related to Michael Brousseau and the common design claim would be manifestlyunfair and it would be unfair for the plaintiff to be compensated for the additional two days at trial on the issue. [31] While the plaintiff was unsuccessful in his claim against the two defendants on the issue of joint publication and commondesign, I am not satisfied that the claim was spurious or unnecessarily prolonged the proceeding: see Sutherland at para. 35.

The natureof the claim and the lack of admissions or direct evidence of common design necessitated relying on circumstantial evidence to prove it.That evidence related to a number of incidents as well as examination of several witnesses and credibility assessments.

It was only clearthe claim was not established after the evidence was before the Court. [32] The defendant James Lynch submits the circumstances of this case are unique in that the plaintiff asserted a separate claim thatwas in effect a separate cause of action that the defendant had to address, which was unnecessary, and hence the plaintiff should not getall of his costs. [33] In my view this was not a unique case, nor did it involve extraordinary circumstances or special considerations. The plaintiffwas egregiously defamed by the defendant James Lynch and compelled to take these proceedings to clear his name.

The claimrespecting joint publication was not spurious or over-litigated. The circumstances do not establish it is manifestly fair and just toapportion the costs. [34] As a result the plaintiff is entitled to his costs at Scale B as against the defendant James Lynch without apportionment. There isno justification for depriving the plaintiff of his full costs from the defendant James Lynch. Michael Brousseau [35] As noted earlier it is conceded by the plaintiff that as Michael Brousseau successfully defended the claim, he is entitled to hiscosts. Mr. Brousseau seeks an order for costs and disbursements at Scale B.

The plaintiff however submits that those costs should be atScale A up to trial and Scale B thereafter. The plaintiff also submits that certain disbursements should be set off against any cost awardto Michael Brousseau given Mr. Brousseau’s conduct leading up to the trial. [36] There is no issue that as a self-represented litigant Mr. Brousseau is entitled to his costs: Skidmore v. Blackmore (1995), (BC CA), 2 B.C.L.R. (3d) 201 (C.A.). [37] Appendix B of the Supreme Court Civil Rules, B.C. Reg. 168/2009, sets out the process for assessing costs.

Specifically, s. 2 ofAppendix B provides that “[i]f a court has made an order for costs, it may fix the scale, from Scale A to Scale C” and that:

a) Scale A is for matters of little or less than ordinary difficulty;

b) Scale B is for matters of ordinary difficulty;

c) Scale C is for matters of more than ordinary difficulty. [38] The plaintiff submits certain pre-trial conduct of Mr. Brousseau while not disentitling him to his costs should be taken intoaccount in determining whether certain disbursements incurred by the plaintiff should be set off against Mr. Brousseau’s entitlement tocosts. The conduct alleged is that the failure of the defendant Michael Brousseau to address deficiencies in document disclosure and toacknowledge receipt of various materials caused the plaintiff to effect personal service on him on more than one occasion.

In addition theplaintiff had to subpoena Mr. Brousseau in order to insure his attendance at court with certain missing documents. [39] In support of this submission the plaintiff relies on Skidmore at para. 40 where the Court of Appeal noted the flexibility inherentin the Tariff enabling the assessing court to consider the different scales of costs.

[ 40 ] In my opinion, it is not appropriate to parse the effort or lack thereof put into trial preparation by Mr. Brousseau and thereby order costs at Scale A. The scale applicable relates to the action’s level of difficulty, not how well prepared or unprepared a party might be. Likewise, with respect to the disbursements I see no basis to credit the plaintiff for the “extra” disbursements incurred due to the conduct of Mr. Brousseau. His lack of responsiveness may have been frustrating to the plaintiff but he was a self-represented individual lacking the resources of a law firm.

For example, he apparently had problems with his fax machine. In addition the conduct was not sufficient to prompt the plaintiff to apply to the court for relief which may have resulted in costs being awarded on such an application. The plaintiff’s claim for such disbursements is dismissed.

Order [ 41 ] I conclude that the plaintiff applicant is entitled to his costs against the defendant James Lynch at Scale B. [ 42 ] The defendant Michael Brousseau is entitled to his costs at Scale B against the plaintiff. [ 43 ] As it was not clear that Michael Brousseau was claiming costs until he attended at the hearing counsel sought leave to address the issue of a possible Bullock or Sanderson order if necessary. Counsel have 30 days to do so. If they choose not to make such submissions they are to advise the Court. “Punnett J.”