WARD BENEDICT APPLICANT/CLAIMANT AND: CANADIAN TRUCK & TRAILER REPAIR INC. v. HINO TRUCK CENTRE FRASER VALLEY LTD., 2016 BCPC 439

Citation: Benedict v. Canadian Truck & Trailer Repair et al. Date: 20161205 2016 BCPC 439 File No: S57533 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims BETWEEN: WARD BENEDICT APPLICANT/CLAIMANT AND: CANADIAN TRUCK & TRAILER REPAIR INC. and HINO TRUCK CENTRE FRASER VALLEY LTD. (now known as Right Trucks Sales & Service Ltd.) RESPONDENTS/DEFENDANTS RULING ON APPLICATION OF THE HONOURABLE JUDGE V. CHETTIAR Counsel for the Applicant/Claimant: G.M. Green

Appearing for the Respondents/Defendants: F.A. Hopton (for Canadian Truck & Trailer Repair Inc.) (No one appearing for Hino Truck Centre Fraser Valley Ltd.) Place of Hearing: Surrey , B.C.

Date of Hearing: September 13, 2016 Date of Judgment: December 5, 2016 INTRODUCTION [ 1 ] The Applicant, Ward Benedict, applies for an order for expenses under Rule 20(6) of the Small Claims Rules , BC Reg. 261/93, against the Respondents, Canadian Truck & Trailer Repair Inc. (“CTT”) and Hino Truck Centre Fraser Valley Ltd. (now known as Right Trucks Sales & Service Ltd.) (“Defendant Hino”). [ 2 ] The Applicant was the Claimant and the Respondents were the Defendants in the underlying action between them arising out of certain repairs that the Defendants did to the Claimant’s truck.

I presided over the trial of the underlying action and rendered judgment on February 4, 2016 (the “February 4 th Judgment”), which was released on March 22, 2016 under cover of a corrigendum. [ 3 ] I will use the terms Claimant or Applicant and Respondents or Defendants as appropriate to the context I am discussing. [ 4 ] At paragraph 75 of the February 4 th Judgment, I concluded that an award to the Claimant for unnecessary expenses he incurred due to the Defendants’ conduct was appropriate.

However, because the Claimant had not submitted details of these expenses for my consideration, I allowed him time to pursue such an award if he wanted to, and he has done so by way of this application. ISSUE [ 5 ] The issue in this application is only the quantum of, and not the entitlement to, the expenses the Applicant may recover under Rule 20(6) . ANALYSIS [ 6 ] As I said at paragraph 72 of the February 4 th Judgment: ... this matter has taken many turns and twists in the last 10 years of its life.

There were numerous pre-trial proceedings, including filing of amended pleadings by both parties, a number of settlement conferences, default judgments against the Defendants, applications to set aside the default judgments, hearing as to quantum of damages, pre-trial conferences, and orders for document disclosure, witness lists and will-say statements.

During this long process, the Defendants were in non-compliance with numerous court orders requiring the Claimant to incur unnecessary costs in having to address them. [ 7 ] Before I delve into the details of the expenses the Applicant has submitted, I will first set out the law relevant to this application. The Law [ 8 ] The procedures in Provincial Court are designed to minimize expenses to litigants.

A successful litigant will generally be able to recover from the unsuccessful litigant reasonable charges or expenses incurred directly relating to the conduct of the proceeding (such as fees for registry filings, documents service, expert reports and photocopies; and witnesses’ travel and other expenses): Rule 20(2).

However, the judge has the discretion to order that each party pay all or a part of that party’s own costs in certain circumstances. [ 9 ] Fees for legal counsel are not recoverable as s. 19(4) of the Small Claims Act , R.S.B.C. 1996, c. 430, (the “ SCA ”) states as follows: 19(4) The Provincial Court must not order that one party in a proceeding under this Act or the rules pay counsel or solicitor’s fees to another party to the proceeding. [ 10 ] Reimbursement for a party’s own time and effort in pursuing litigation is also not recoverable.

Thus, the fees and expenses which may be recoverable in Provincial Court are distinct from “costs” recoverable in the Supreme Court and Court of Appeal. [ 11 ] Of particular relevance to this application is Rule 20(6) , which reads as follows: Compensation for unnecessary expenses 20(6) A judge may order a party or witness whose conduct causes another party or witness to incur expenses to pay all or part of those expenses. [ 12 ] In addition to assessing expenses against the unsuccessful party under Rule 20(2), Rule 20(6) permits a judge to order repayment from any party or witness whose conduct causes another party or witness to incur expenses (for example, see Figueroa v.

Fitzpatrick , 2006 BCPC 489 ; Teal-Jones Group v. Vyner , 2011 BCPC 335 ; and Weeks v. Ford Credit Canada Ltd. , [1994] B.C.J. No.

1737 (QL) (Prov. Ct.) ). [ 13 ] In Weeks , the court said the term “expenses” as used in Rule 20(6) means money actually spent. At paragraph 21, it said: What is specifically contemplated by Rule 20(6) is compensation for expenses.

The Concise Oxford Dictionary, Seventh Edition, defines “expenses” as “amount of money spent.” Without commenting on the practice of ascribing a nominal or global figure to costs or compensating for lost time in this type of application, in my view there must be some suggestion that actual expenditures were incurred by the inconvenienced party, and those would not include amounts paid to counsel. [ 14 ] Finally, I note that while the heading to Rule 20(6) states “Compensation for unnecessary expenses”, it is not necessary for me to find that the expenses were “unnecessarily” incurred since that test is not set out in the Rule itself, and according to s. 11 of the

Interpretation Act , R.S.B.C. 1996, c. 238, headings are not part of an enactment. [ 15 ] I will now turn to the circumstances in this case. Circumstances in this case [ 16 ] From the court record and the parties’ evidence and submissions, I have tabulated below the various proceedings in this matter, any expenses awarded to the Applicant in past proceedings, and the expenses the Applicant is seeking on this application.

I have also included in this table the expenses I have awarded or denied and my reasons for such award or denial. [ 17 ] While the Applicant’s counsel acknowledged that the Provincial Court does not award legal fees as costs, he submitted that I should consider making an exception in this case due to the Defendants’ deliberate non-compliance with court orders, and failure to follow and respect the court process.

He said it is the Court’s policy not to award legal fees, when in fact it is s. 19(4) of the SCA that mandates that the Provincial Court “must not order” one party to pay counsel or solicitor’s fees to another party to the proceeding. Therefore, I have no discretion to make any exception.

This is entirely in keeping with the purpose of the SCA, which is set out in s. 2(1) of the SCA as follows: 2(1) 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. [my emphasis] [ 18 ] There is no question in this case that the Defendants’ conduct caused unnecessary delay and expense to the Applicant.

While reimbursement for a party’s own time and effort in pursuing litigation is not recoverable, I find that the amounts I have awarded below to the Applicant are wages he actually lost by reason of having to deal with the unnecessary proceedings caused by the Defendants’ conduct [see Baur v. Winners Merchants International L.P. , 2014 BCPC 254 , and Out West Windows v. Tilley , 2014 BCPC 296 , where the court awarded recovery for lost wages].

There are many other instances, as noted in the table below, where the Applicant spent his own time and effort in the normal course of pursuing his claim against the Defendants for which he is rightly not seeking to recover any expenses. [ 19 ] I accept the Applicant’s evidence as to how he calculated his hourly rate using his income figures for the years in question, as reported to the Canada Revenue Agency.

He sought the assistance of his accountant in calculating his rates. [ 20 ] I also note that the Applicant is not seeking any other out of pocket expenses, such as mileage, photocopies or service fees, that he may have incurred relating to the unnecessary proceedings. [ 21 ] Therefore, I am satisfied that the award I have made below is reasonable in all the circumstances of this case. Abbreviations: A = Applicant; AC = Applicant’s counsel 1 2 3 4 5 6 7 8 No.

Date Type of proceeding Appearances (if any) Expenses awarded prior to this application (if any) Expenses claimed by Applicant on this application Expenses awarded on this application Reasons for award/denial of expenses on this application 1. Apr. 12, 2005 Notice of Claim by W. Benedict 2. Apr. 27, 2005 Reply by CTT 3. Apr. 28, 2005 Application by W. Benedict for Default Order against Defendant Hino 4. Apr. 29, 2005 Application by Defendant Hino to Cancel a Default Order and permission to file late Reply

5. May 10, 2005 Default hearing: Set aside Default Order against Defendant Hino and allow filing of late Reply within 14 days and serve on Claimant W. Benedict; D. Gray for Defendant Hino A: $75.24 (3 hrs. @ $25.08/hr.) Awarded against Defendant Hino only Failure by Defendant Hino to follow court process, thereby causing unnecessary delay 6. May 11, 2005 Reply by CTT and Defendant Hino 7. June 15, 2005 Notice of Settlement Conference for Sept. 2, 2005 8. Sept. 2, 2005 Settlement Conference W. Benedict; D. Tunzi for CTT; D. Gray for Defendant Hino 9.

Sept. 16, 2005 Notice of Settlement Conference for Dec. 1, 2005 10. Dec. 1, 2005 Settlement Conference; Document production order; W. Benedict and G. Green, legal counsel; D. Tunzi for CTT; I. Chesterton for Defendant Hino 11. Dec. 16, 2005 Notice of Trial for April 18, 2006 12. Mar. 13, 2006 Application to Judge by W. Benedict to amend Notice of Claim, for Defendants to produce documents, and for Claimant to call expert witness 13. Mar. 23, 2006 Hearing and orders as applied W. Benedict and G. Green; D. Tunzi for CTT; I.

Chesterton for Defendant Hino A: $71.31 (1.5 hrs. @ $47.54/hr.) Awarded Hearing necessitated by Defendants’ failure to produce documents in non-compliance with a court order and in spite of Claimant’s repeated requests AC: $403.20 (2.4 hrs. @ $168.00/hr.) Denied Per s. 19(4) of the SCA 14. Apr. 13, 2006 Letter to court from F. Hopton on behalf of CTT and Defendant Hino requesting postponement of trial scheduled for April 18, 2016

15. Apr. 18, 2006 Adjournment of trial granted – Adjournment fee of $100 to be paid into court W. Benedict; F. Hopton 16. Aug. 20, 2007 Application to Judge by W. Benedict for Defendants’ Replies to be struck for repeated non- compliance with document production orders 17. Sept. 12, 2007 Hearing and order: Application to strike Replies granted; Defendants have 45 days to respond W. Benedict and G.

Green; no appearance by Defendants A: $78.00 (1.5 hrs. @ $52.00/hr.) Awarded Hearing necessitated by Defendants’ failure to produce documents in non-compliance with multiple court orders AC: $386.40 (2.3 hrs. @ $168.00/hr.) Denied Per s. 19(4) of the SCA 18. Oct. 30, 2008 Application by W. Benedict for Default Order 19. Nov. 17, 2008 Hearing adjourned to registry to set new date due to lack of court time G. Green for Claimant; no appearance by Defendants 20. Nov. 17, 2008 Requisition: Default Hearing adjourned to Dec. 2, 2008 21.

Dec. 2, 2008 Hearing and order: Default Order granted to Claimant against both Defendants W. Benedict and G. Green; no appearance by Defendants $14,359.82 + $1,380.48 interest + $156.00 filing fees + $40.00 service fees + $25.00 costs A: $263.52 (13.5 hrs. @ $19.52/hr.) Awarded Hearing necessitated by Defendants’ failure to follow court process, thereby causing unnecessary delay AC: $1,596.00 (9.5 hrs. @ $168.00/hr.) Denied Per s. 19(4) of the SCA 22. Feb. 18, 2009 Application to Judge by Defendants to cancel Default Order made Dec. 2, 2008 23.

Mar. 3, 2009 Hearing and Order: set aside Default Order; Amended Reply within two weeks W. Benedict and G. Green; R.A. Hambrook, counsel for Defendants $500.00 to Claimant; $100.00 to Court (already owed) A: $120.00 (5.0 hrs. @ $24.00/hr.) Denied As Court already awarded costs AC: $840.00 (5.0 hrs. @ $168.00/hr.) Denied Per s. 19(4) of the SCA

24. Mar. 6, 2009 Amended Reply by Defendants 25. Mar. 10, 2009 Notice of Settlement Conference for July 14, 2009 26. July 14, 2009 Settlement Conference: pre- trial conference to be scheduled; document exchange and disclosure of evidence orders made W. Benedict and G. Green; F. Hopton and A. Hambrook, for Defendants A: $33.60 (1.4 hrs. @ $24.00/hr.) Awarded Further Settlement Conference necessitated by Defendants’ failure to follow court process, thereby causing unnecessary delay AC: $235.20 (1.4 hrs. @ $168.00/hr.) Denied Per s. 19(4) of the SCA 27.

July 24, 2009 Notice of Pre- Trial Conference for Dec. 14, 2009 28. Dec. 14, 2009 Pre-Trial Conference: Mr. Hambrook to call Mr. Green D. Tunzi, F. Hopton and A. Hambrook for Defendants; no appearance by Claimant as notice to G. Green was returned (office vacant) 29. Sept. 27, 2010 Notice from court registry: Application to the Registrar by Claimant for fixing new date for Pre-Trial Conference cannot be filed; returned; Application to a Judge must be filed 30. Sept. 7, 2011 Application to a Judge to fix new date for Pre-Trial Conference 31.

Nov. 8, 2011 Court list: to fix date for Pre-Trial Conference; struck off list No appearance by any party 32. Mar. 2, 2015 Requisition by Claimant for new Pre-Trial Conference date 33. Apr. 13, 2015 Notice of Pre- Trial Conference for June 10, 2015

34. June 10, 2015 Pre-Trial Conference: document exchange and disclosure of evidence orders made W. Benedict and G. Green; F. Hopton for CTT and D. Gray for Defendant Hino 35. June 10, 2015 Notice of Trial for Jan. 18 to 20, 2016 36. Jan. 18 to 20, 2016 Trial W. Benedict and G. Green; F. Hopton for CTT; no appearance by Defendant Hino 37. Feb. 4, 2016 Mar. 22, 2016 Reasons for Judgment Reasons for Judgment released under cover of Corrigendum Joint and several judgment against Defendants for (

a) damages of $13,695.55 plus pre- judgment interest (

b) Claimant’s filing and service fees 38. May 13, 2016 Application by Claimant to fix quantum of expenses under Rule 20(6) 39. May 20, 2016 Hearing re quantum of expenses under Rule 20(6) W. Benedict and G. Green; F. Hopton for CTT; no appearance by Defendant Hino A: $136.91 (3.6 hrs. @ $38.03/hr.) Denied Applicant was not prepared to proceed with the hearing of the application; furthermore, the applicant should have come prepared to address this issue at trial AC: $739.20 (4.4 hrs. @ $168.00/hr.) Denied Per s. 19(4) of the SCA 40.

Sept. 9, 2016 Preparation for expenses hearing on Sept. 13, 2016 Meeting between W. Benedict and G. Green A: $38.03 (1.0 hr. @ $38.03/hr.) Denied Applicant should have come prepared to address this issue at trial; also was not prepared to proceed on May 20, 2016 AC: $168.00 (1.0 hr. @ $168.00/hr.) Denied Per s. 19(4) of the SCA

41. Sept. 13, 2016 Hearing re quantum of expenses under Rule 20(6) W. Benedict and G. Green; F. Hopton for CTT; no appearance by Defendant Hino A: $76.06 (2.0 hrs. @ $38.03/hr.) Denied Applicant should have come prepared to address this issue at trial; also was not prepared to proceed on May 20, 2016 AC: $336.00 (2.0 hrs. @ $168.00/hr.) Denied Per s. 19 (4) of the SCA TOTAL A: $892.67 Awarded: $521.67 ($75.24 + $446.43) Denied: $371.00 AC: $4,704.00 Denied: $4,704.00 ORDERS 1.

The Applicant shall be entitled to the following expenses under Rule 20(6) : a) $75.24 from Defendant Hino; and b) $446.43 from CTT and Defendant Hino, jointly and severally. 2. CTT and Defendant Hino shall pay to the Applicant the amounts set out in the preceding order within 30 days of the date of this ruling. By the Court The Honourable Judge V. Chettiar Provincial Court of British Columbia