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CIVIL PROCEDURE - Costs - Special orders - Offers to settle

Tuesday, April 27, 2021 @ 6:24 AM  

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Appeals by the plaintiff and one of two defendants from a costs award in a defamation action. The plaintiff was a residential tenant. The defendants were the landlord and her son, acting as her agent in performing landlord duties. The defendants sought to evict the landlord. The son made calls to 911 alleging the plaintiff was mentally ill and threatened to burn the house down. In subsequent human rights proceedings, the son admitted during cross-examination that he fabricated the allegations. The trial judge concluded that the false allegations constituted slander and were made with malice. The mother was vicariously liable for her son’s wrongful actions. Adverse inferences were drawn from the defendants’ failure to appear at trial. The plaintiff was awarded general damages of $5,000 on a joint and several basis, and punitive damages of $5,000 payable by the son. The trial judge declined to order special costs and awarded the plaintiff costs at Schedule B. The issue of costs was reopened to allow submissions on the impact of settlement offers. The judge issued costs reasons declining special costs and reducing costs payable to the plaintiff by half of Scale B after the date of an $8,000 settlement offer by the defendants. The plaintiff and the son appealed.   

HELD: Appeals allowed. The trial judge erred in principle in considering the plaintiff’s pre-litigation conduct in concluding he was disentitled to special costs. In addition, the trial judge relied upon an irrelevant consideration in referring to the plaintiff as a professional litigant as a basis for denying special costs. The insufficiency of the findings and foundation for denying special costs required remitting the issue to the trial judge for determination. In reducing the plaintiff’s costs award, the trial judge conflated considerations related to whether the settlement offer should have been accepted with jurisdiction to otherwise reduce a costs award. There was no principled basis to reduce a costs award where the rejected offer was less than the amount awarded at trial. With respect to the defendant son’s appeal, the trial judge’s analysis of the settlement offers proceeded on the misapprehension that both defendants were jointly and severally liable for the general and punitive damages awarded. On its face, the finding that the mother was not vicariously liable for the punitive damages award was a relevant factor for consideration.

Gichuru v. Purewal, [2021] B.C.J. No. 359, British Columbia Court of Appeal, P. Abrioux, J.C. Grauer and P.G. Voith JJ.A., March 1, 2021. Digest No. TLD-April262021004