Court Considers Criteria For Awarding “Scale C” Costs

police car wrecked from accident

Reasons for judgment on the issue of costs relating to the trial decision of X. V. Y., 2011 BCSC 944, were released on January 13, 2012 (reported at 2012 BCSC 37). The trial decision of X. V. Y., which dealt with a motor vehicle accident involving a police officer responding to an emergency call, was the subject of a past blog entry on contributory negligence and liability, available here.

In X. V. Y., 2012 BCSC 37, Dardi J. had to consider, among other issues, which “scale of costs” the Plaintiff was entitled to. The term “scale of costs” refers to the method of calculating the amount the party awarded costs at trial is entitled to. To provide a brief summary, “Scale A” costs are reserved for matters of little or less than ordinary difficulty, “Scale B” costs are for matters of ordinary difficulty, and “Scale C” costs are only awarded when the trial involves matters of more than ordinary difficulty.

In her decision on costs in X. V. Y., Dardi J. considered Section 2(3) of Appendix B to the SUPREME COURT CIVIL RULES, which lists the following factors that the court can take into account when determining the appropriate scale of costs:

(A)   WHETHER A DIFFICULT ISSUE OF LAW, FACT OR CONSTRUCTION IS INVOLVED;

(B)   WHETHER AN ISSUE IS OF IMPORTANCE TO A CLASS OR BODY OF PERSONS, OR IS OF GENERAL INTEREST;

(C)    WHETHER THE RESULT OF THE PROCEEDING EFFECTIVELY DETERMINES THE RIGHTS AND OBLIGATIONS AS BETWEEN THE PARTIES BEYOND THE RELIEF THAT WAS ACTUALLY GRANTED OR DENIED.

Dardi J. held that in addition to the above statutory considerations, criteria relied on in past case law can also be a useful guide when determining the appropriate scale of costs. Such criteria includes:

(A)   THE LENGTH OF THE TRIAL;

(B)   THE COMPLEXITY OF THE ISSUES INVOLVED;

(C)    THE NUMBER AND COMPLEXITY OF PRE-TRIAL APPLICATIONS;

(D)   WHETHER OR NOT THE ACTION WAS HARD FOUGHT WITH LITTLE OR NOTHING BEING CONCEDED ALONG THE WAY;

(E)    THE NUMBER AND LENGTH OF EXAMINATIONS FOR DISCOVERY;

(F)     THE NUMBER AND COMPLEXITY OF EXPERTS’ REPORTS; AND

(G)   THE EXTENT OF THE EFFORT REQUIRED IN THE COLLECTION AND PROOF OF FACTS.

Despite the above guiding factors, Dardi J. stressed with respect to cases of “more than unusual difficulty” that “the trial judge should, or is at least expected to, recognize such a case when he hears and sees it” (at para. 20).

In X. V. Y., Dardi J. held that although the trial had lasted a full 25 days, “the number of trial days devoted to liability does not in itself demonstrate complexity” (at para. 25). In addition, although at trial there was expert evidence presented on the issue of contributory negligence, including evidence from engineers specializing in accident reconstruction, Dardi J. held that “in the context of the liability cases this court typically hears, the expert evidence regarding the issue of contributory negligence was not particularly lengthy or unusually complex” (at para. 25). While an engineer’s report which reconstructs the scene of an accident may seem inherently complex, the fact that such a report was found not to depart from the usual types of evidence heard in motor vehicle accident cases where liability is at issue did not justify an award of Scale C costs.

Finally, in declining to award costs at Scale C and holding that Scale B costs were appropriate, Dardi J. also distinguished CAMASO V. EGAN, 2011 BCSC 954 on the basis that that case “involved a 33-day trial with numerous pre-trial and trial applications, six examinations for discovery totalling seven days, complex questions of law, and no concession on liability” (at para 26).

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