IN THE SUPREME COURT OF BRITISH COLUMBIA

Transcription

1 IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Geller v. Sable Resources Ltd., 2014 BCSC 171 Date: Docket: S Registry: Vancouver Between: And Jan Geller Sable Resources Ltd. Plaintiff Defendant Before: The Honourable Mr. Justice McEwan Reasons for Judgment Counsel for the Plaintiff: Counsel for the Defendant: Place and Date of Trial/Hearing: Place and Date of Judgment: R.B. Johnson D. Cayley Vancouver, B.C. January 22, 2014 Vancouver, B.C. February 3, 2014

2 Geller v. Sable Resources Ltd. Page 2 [1] The plaintiff applies for costs following a trial in which I found him entitled to $20,000 in damages lieu of notice arising out of an apprenticeship contract. I had left that determination of costs open for submission if there were circumstances affecting costs that either party wishes to draw to the court s attention. [2] The defendant submits that no costs are payable on two grounds: (1) that the judgment obtained was within the jurisdiction of the provincial court; and (2) that the defendant had delivered an offer for an amount in excess of the amount awarded at trial. [3] The relevant rule respecting jurisdiction is Rule 14-1(10). It provides: Costs in cases within small claims jurisdiction (10) A plaintiff who recovers a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds that there was sufficient reason for bringing the proceeding in the Supreme Court and so orders. [4] The provincial court has jurisdiction in claims up to $25,000 pursuant to the Small Claims Court Monetary Limit Regulation, B.C. Reg. 179/2005. [5] The defendant submits that Rule 14-1(10) is mandatory unless there is a finding of sufficient reason. [6] The plaintiff submits a number of examples of cases where the court has found sufficient reason. In Koo v. Wang, 2004 BCSC 397, Burnyeat J. quoted Kosko v. Collie, [1995] B.C.J. No. 3000, No. C New Westminster Registry (December 18, 1995) with approval. There Leggatt J. observed. There are no pleadings and no provision for discovery. Pre-trial conference dates are assigned regardless of whether or not the plaintiff is ready for trial. The plaintiff in the Small Claims Division cannot recover any costs should he choose, as he would be well advised to choose in this case, to be represented by counsel. These are all, in my view, legitimate considerations to be taken into account and weighted with the likelihood of damages being recovered within the jurisdiction of the Small Claims Court.

3 Geller v. Sable Resources Ltd. Page 3 [7] In Gradek v. DaimlerChrysler Financial Services Canada Inc., 2011 BCCA 136, the Court of Appeal made some general comments regarding the meaning of sufficient reason : [16] The words sufficient reason are not defined in the Rules of Court. In their ordinary and grammatical sense, they do not suggest a specific limitation in terms of application, although it is clear that any reason will not do. The reason has to be sufficient, but there is nothing in the Rule to suggest that it has to be connected solely to the quantum of the claim. On the other hand, the words do not connote the exercise of a discretion, with its attendant deferential standard of review. That point was made by this Court in Reimann v. Aziz, 2007 BCCA 448, 72 B.C.L.R. (4th) 1, at para. 13: [13] At the outset, I observe that the application of Rule 57(10) does not involve an exercise of discretion. For a plaintiff who recovers a sum within the jurisdiction of the Small Claims Court to recover more than disbursements, the court must make a finding that there was sufficient reason for bringing the action in the Supreme Court. [17] In support of its position, the appellant relies on the nature and purpose of the legislative scheme which, he submits, reflect an intention on the part of the Legislature to confine the meaning of the words sufficient reason to reasons relating only to quantum as assessed at the outset of the claim. In that respect, it is common ground that the primary purpose of denying costs in the Supreme Court to those with monetary claims of $25,000 or less is to encourage claimants to bring their claims in Small Claims Court, with its simplified procedures and greater accessibility to judicial dispute resolution. Litigating in the Supreme Court when the amount of money involved is relatively small can be prohibitive for both the winner and the loser. [18] I am in general agreement with the appellant s submission in its factum (at para. 33) that the object of the small claims procedures set out in the Small Claims Act, R.S.B.C. 1996, c. 430 and Rules, B.C. Reg. 261/93 is to provide parties, and lay litigants, in particular with an easily understandable, flexible, and less costly alternative to the Supreme Court. I am also prepared to accept that, in most cases, the pre-trial procedures, including pre-trial disclosure of documents and expert reports, mediation services, settlement conferences and recovery of such reasonable expenses as interpreter fees, provided in the Provincial Court, will enable the parties to proceed in a cost-efficient manner to a just result. But, that will not always be the case. In this instance, for example, the trial judge was satisfied that Mr. Gradek s circumstances required the assistance of counsel to obtain a just resolution of his claim. It is implicit in his reasons that he considered that it would be unjust to find that Mr. Gradek require counsel to properly present his claim, on the one hand, and to deny him costs which would partially offset the expense of retaining counsel, on the other. It was on this basis, in part, that he found there was sufficient reason within the meaning of Rule 57(10) to bring the action in the Supreme Court with its attendant relief for the successful party in costs.

4 Geller v. Sable Resources Ltd. Page 4 [19] Without endorsing all of the factors relied on by the trial judge as constituting sufficient reason in this case, I am satisfied that there may be circumstances which may constitute sufficient reason for bringing an action in the Supreme Court, thereby triggering its costs provisions, despite the fact that it is apparent from the outset that the award will fall within the monetary jurisdiction of the Provincial Court. It is open to a defendant who believes that the claim should not have been brought in the Supreme Court to apply under s. 15 of the Supreme Court Act, R.S.B.C. 1996, c. 443, to have the matter transferred to the Provincial Court. Alternatively, if the matter proceeds in the Supreme Court, it is open to the defendant to ask that a successful plaintiff be denied costs on the basis that there was not sufficient reason to bring the action in the Supreme Court in the first instance. [20] I accept that the narrow interpretation of the words sufficient reason advocated by the appellant would provide greater certainty to litigants in knowing the consequences of proceeding in Supreme Court where the matter falls within the Small Claims monetary limit. But I agree with the trial judge that if the Legislature had intended to limit the scope of the words sufficient reason to the extent suggested by the appellant, it could readily have done so. While I am satisfied that the words, sufficient reason should not be interpreted in an expansive manner, but with restraint, I am also satisfied that they must be read in such a way that a trial judge is not forced to deny a party costs where he is satisfied, as here, that justice can only be achieved as between the parties by an award of costs to the successful party. [8] I note, as an aside, that I am not quite sure it is correct to speak of the rules in terms of the intention of the Legislature. Rules making has been delegated to the Lieutenant-Governor in Council following consultation with a Rules Committee made up of representations of the Bench and Bar. Historically, this was a mechanism for implementing the Rules Committee s recommendations, recognizing the courts right, as an independent branch of government, to control its own process. For many years, the preface to the Rules included the following description, which remains at least theoretically true to the present day: By convention, a Rules Revision Committee constituted by the Attorney General assists him or her in making recommendations to the Lieutenant Governor in Council for rule amendments. In practice, no rule amendments are recommended that have been proposed by the Committee. [9] The Rules have regulatory rather than statutory force. In any given case it may be necessary to reconcile Rules with the courts inherent jurisdiction. This point was recently made by the Court of Appeal in R & J Siever Holdings Ltd. v. Moldenhauer, 2008 BCCA 59:

5 Geller v. Sable Resources Ltd. Page 5 [14] In addition to the powers conferred by the Rules of Court, the Supreme Court of British Columbia, as a superior court of record, has inherent jurisdiction to regulate its practice and procedures so as to prevent abuses of process and miscarriages of justice: see I.H. Jacob, The Inherent Jurisdiction of the Court (1970) 23 Current Leg. Prob. 23 at As the author said, at 25, The inherent jurisdiction of the court may be exercised in any given case, notwithstanding that there are Rules of Court governing the circumstances of such case. The powers conferred by the Rules of Court are, generally speaking, additional to, and not in substitution of, powers arising out of the inherent jurisdiction of the court. The two heads of powers are generally cumulative, and not mutually exclusive, so that in any given case, the court is able to proceed under either or both heads of jurisdiction. [10] This is only to say that to the extent that the Rules amount to a consensus about how the courts inherent jurisdiction will be exercised, they perform a valuable role in facilitating the sort of predictability urged upon the Court of Appeal by the appellant in Gradek. As R & J Siever points out, however, the Rules are not a straitjacket. [11] There is always a difficulty in defining cut-offs in legal matters strictly in monetary terms. The amount involved may bear no relation to the complexity of a matter, the importance of a matter to the parties, or its value as a precedent. [12] In the present case, I am satisfied that while it should have been clear to the plaintiff that the case was within the range ultimately fixed as damages, I do not think it can be said that it was, or should have been, obvious that the damages would fall below $25,000. [13] I also do not think that the case could be described as simple or straightforward, given the view the plaintiff took as to the obligations that flowed under the apprentice sponsorship agreement between the parties. Some cases, regardless of the value, are better prepared and tried with the investigations tools available under the Rules. This case involved elements that might have led to damages above the small claims range. There is no question that the case required the assistance of counsel to be properly presented. This is a factor in the

6 Geller v. Sable Resources Ltd. Page 6 consideration of the proper forum as noted by Humphries J. in Kanani v. Misiurna, 2008 BCSC 1274 at para. 8: [8] In Faedo v. Dowell and Wachter, M (October 19, 2007) Vancouver, Curtis J. held that in a situation where the defendant put the plaintiff to the proof of having suffered any injury at all, thus making her credibility a crucial issue at trial, it was reasonable for the plaintiff to require the assistance of counsel. She was therefore justified in commencing the action in Supreme Court where she could hope to recover some of the costs it was necessary for her to expend in retaining counsel to recover the compensation to which she was found to be entitled. This reasoning has application here as well. [14] The plaintiff submits that the defendant did not raise the matter earlier as it might have done by making an application to bring the matter down to provincial court under s. 15 of the Supreme Court Act, R.S.B.C. 1996, c I would not be specifically critical of the defendant on that basis. This Court is reluctant to make that call except in very clear cases (see Chang v. Wren, 2011 BCSC 912). I think it most unlikely that a court dealing with a pre-trial description of this case would have been moved to put the matter down to small claims court. I do not make this observation to suggest a test, but simply to note that things are not as clear before the evidence is heard as they may be (to a judge) afterwards. I do not think a successful plaintiff should be deprived of costs in an otherwise meritorious case where the matters in issue warrant discovery and are not predictably below the small claims limit. Within reason, a plaintiff should not incur costs penalties for guessing wrong about the amount of his eventual recovery. [15] I will also add that the Rule is predicated on the availability of a small claims court where straightforward claims may be heard expeditiously. I do not strain judicial notice to note that this cannot be assumed, given what are apparently resource issues in that forum. [16] I take a somewhat different view of the offer to settle for $25,000. I think that the plaintiff, having had the advantage of discovery, and an opportunity to realistically assess the strengths of his claim, ought to have considered that the court might, as it did, make an award of compensation within the range

7 Geller v. Sable Resources Ltd. Page 7 conventionally awarded in wrongful dismissal cases. The plaintiff s theory of the case was predicated on the court finding a greater degree of fault in the defendant s conduct than it did. Punitive damages claims were dropped at the last minute. [17] The offer should have been carefully considered, but the plaintiff needed an opportunity to do so. I might well have been persuaded to deprive the plaintiff of his costs were he given a realistic opportunity to consider this offer. As it was, it came essentially on the eve of trial. I do not suggest a general rule about late offers, but I accept the plaintiff s submission in this case that it was difficult to consider such an offer at a point where all trial preparations were in place. [18] Accordingly, having considered the parties submissions, I am of the view that the plaintiff is entitled to costs in this matter. McEwan J. The Honourable Mr. Justice McEwan