Personal injury lawyers in BC will want to take note that the Court of Appeal has reversed an award of trial costs as the judge was clearly wrong in finding that the defendants were successful. (Loft v. Nat,2014 BCCA 108). The Court of Appeal makes it clear that obtaining less money than what was requested at trial is not, by itself, a proper reason to deny a claimant the costs of litigation.
The claimant suffered injuries in a motor vehicle accident which occurred at an intersection on the King George Highway in Surrey, BC. Shortly after coming to a stop his vehicle was struck without warning from behind by a Mack truck. The defendants did not admit liability until shortly before trial.
At trial, the claimant  sought $100,000-$150,000 for pain and suffering, $450,000-$600,000 for net past wage loss, $1.2 Million-$2.2 Million for future loss of earnings, $17,220.34 for out of pocket expenses, and $15,000 for future cost of care. The trial judge awarded only $40,000 for pain and suffering, $1,900 for out of pocket expenses, $21,000 for net past wage loss, and nothing for future loss of earnings or cost of future care.
Without any submissions from the parties the trial judge also awarded the cost of trial to the defendants simply stating, “The defendants have been largely successful in all areas of the claim and are entitled to their costs. Unless there is other information not currently at my disposal, I award costs to the defendant on Scale B. If there are other issues relating to costs, I will accept written submissions from counsel…” The Court of Appeal found this to be in error. As the Court of Appeal makes clear at paragraph 46:

Pursuant to Rule 14-1(9), costs in a proceeding must be awarded to the successful party unless the court otherwise orders. At its most basic level the successful party is the plaintiff who establishes liability under a cause of action and obtains a remedy, or a defendant who obtains a dismissal of the plaintiff’s caseService Corporation International (Canada) Ltd. (Graham Funeral Ltd.) v. Nunes-Pottinger Funeral Services & Crematorium Ltd., 2012 BCSC 1588, 42 C.P.C. (7th) 416.

In this personal injury lawsuit the claimant was awarded $62,900 in damages for injuries he had suffered in the motor vehicle accident. The defendants had denied liability until shortly before trial. Although the money award was far less than sought, the claimant was the successful party- The fact that he obtained a judgment in an amount less than the amount sought is not, by itself, a proper reason for depriving him of costs: 3464920 Canada Inc. v. Strother, 2010 BCCA 328, 320 D.L.R. (4th) 637., para 47)
Being a successful party for the purpose of costs does not mean the claimant has really won the case or that they have been properly compensated. The fact that a party has been successful at trial does not mean that the trial judge must award costs in its favour.  The court may make a contrary order for reasons mentioned by the Court of Appeal which include: misconduct in the course of the litigation; failure to accept an offer to settle under Rule 9-1; and when the court rules against the successful party on one or more issues that took a discrete amount of time at trial (this is confined to relatively rare cases). Ultimately, costs are very much a matter of the trial judge’s discretion.
As obiter dicta the Court of Appeal did offer some practical advice to trial judges when rendering decisions on costs:

[52]  In closing, I would note that there was nothing inherently wrong with the trial judge commenting on costs in his reasons for judgment, even though the parties had not yet made submissions on costs. While it is entirely appropriate for a trial judge to indicate his or her views of costs in the reasons, when a judge does so, he or she should make clear that the costs conclusions are tentative in nature and invite the parties to make submissions on costs if they seek a different result. If that had been done in this case, it is likely the costs appeal would have been avoided.

Learn more about high and low personal injury court awards by watching our short video, Maximum & Minimum Cash Awards:

Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.

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