How does the court determine whether or not they will grant cost relief to the defendant?
In the June 19, 2015 decision in Mote v. Silva 2015 BCSC 1053 Madam Justice Ross considers and rejects the defendant’s request to apportion costs. She refers to the success and credibility of the plaintiff’s claim, and the efficiency with which the trial was conducted, eventually declining to exercise her discretion to grant apportionment of costs. This serves as notice that costs will only be apportioned where warranted:
[13] In the present case, the defendants submit that the question of the cause of the plaintiff’s C6-7 disc herniation constituted a discrete issue, which was decided in favour of the defendants. The plaintiff submits that this was not a discrete issue of the kind that makes apportionment of costs appropriate and that in any event, apportionment would not be a just result in the circumstances.
[14] I have concluded that this is not an appropriate case to apportion costs. First, from the perspective of the heads of damage, this is not a case of divided success, but one in which the plaintiff recovered under every head of damage claimed. While the awards for non-pecuniary loss and loss of future earning capacity were considerably lower than the plaintiff’s claim, the defendants cannot be said to have succeeded with respect to these claims.
[15] In addition, there is no conduct on the part of the plaintiff or with respect to the conduct of the plaintiff’s case which is worthy of criticism. I found Mr. Mothe to be an honest and straightforward witness. I did not conclude that he was exaggerating his evidence. I agree with the submission of Mr. Mothe’s counsel that a clear distinction is to be made between a plaintiff who lacks credibility, who exaggerates his or her claims, and the plaintiff who is unable to provide an accurate account of the history of his or her condition despite best efforts to do so. I found the experts called by the plaintiff to be helpful. They did not take on an advocacy role.
[16] The trial was efficiently conducted and finished within the time that had been set. In any event, it was necessary to address the role that the disc herniation played in relation to the plaintiff’s condition and level of function no matter what the decision on causation of that condition. Thus it cannot be said that the case was prolonged unnecessarily as a result of the time spent considering the causation issue. There were no witnesses called exclusively to testify about the C6 disc herniation.
[17] In the result, I am not prepared to exercise my discretion to grant apportionment of costs.
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