Rule 15 of the British Columbia Supreme Court Civil Rules pertains to “fast track” litigation, which is meant to apply to cases worth less than $100,000, or cases where the trial duration would be less than three days. The Court can also order that the matter proceed via the fast track route, or the parties can consent to it.

 

In Foster v. Chandel, the Plaintiff was injured in a motor vehicle accident, and consequently brought an ICBC claim for damages for pain and suffering, as well as various other heads of damages. ICBC’S lawyer sought to have the matter removed from Rule 15 fast track litigation, and sought to have the Plaintiff attend for an independent medical examination (IME) with a psychiatrist. The Court noted that the relief sought was intertwined to an extent, as an order for a psychiatric examination may actually increase the length of the trial, as well as add to the complexity of the proceeding, thereby supporting the removal of the action from fast track procedures. The Court rejected the submission of ICBC’S lawyer, and dismissed the application.

 

[23]         The dismissal of the application for a psychiatric examination eliminates one of the defendants’ rationales for seeking removal of the action from Fast Track.

[24]         Another rationale for removal of this action from Fast Track is the length of the trial.

[25]         It appears on the evidence before me that the trial can be completed in three days. The plaintiff says that she can complete her case in just over one day. The defendants’ need to cross-examine the plaintiff’s two experts has not been firmly determined, but the time required for this purpose should not be more than one day. That leaves sufficient time to hear the defendants’ witnesses as well as closing submissions. In any event, the defendants are not even certain of the witnesses to be called or the medical evidence that will be led at trial. To a large extent, the defendants’ evidence concerning the length of trial is based on a yet to be determined witness list and trial plan.

[26]         The fact that the plaintiff’s claim for damages might exceed $100,000 is not in and of itself justification for removal of the action from Fast Track: Hemani v. Hillard, [2011] B.C.J. No. 1924 (S.C.).

[27]         Finally, the plaintiff is prepared to continue her examination for discovery for up to three hours beyond the time allowed under Fast Track. That concession removes any potential prejudice to the defendants who say that certain subject matters have yet to be explored. No order is made with respect to the examination time as the relief was not specifically sought. The defendants always have the opportunity to apply for an order extending the time if this remains an area of contention.

[28]         The defendants’ application for removal of this action from Fast Track is at best premature. As the evidence develops, it may become obvious to the parties that the action ought to be removed if only because the trial will certainly consume more than three days. In those circumstances, it might be in the plaintiff’s best interests to consent to the removal to ensure that a trial date is not lost and costs are not so limited: Rule 15-1(14), Sandhu v. Roy, 2011 BCSC 1653.

 

In Hemani v Hillard, this Rule was given judicial consideration. The lawyer for ICBC objected to the matter proceeding by way of fast track litigation, as the length of trial was expected to take five days (whereas the Rule itself has a three day limit). The Plaintiff was claiming for less than $100,000, however, so the Court allowed the matter to proceed via the fast track route.

 

The Court ruled that Rule 15 applies to cases worth below $100,000 regardless of length of trial, and also to cases worth more than this, however where the duration of the trial is three days or less.

 

[6]               The plaintiff acknowledges that her claim is valued at $100,000 or less exclusive of interest and costs.

 

[7]               The defendant submits that where the plaintiff estimates the trial will take more than three days, an action can no longer be continued in fast track.

 

[8]               The defendant submits that Rule 15-1 applies only to those actions where:

a.  both parties estimate that the trial will be completed in three days and

b.  the claim meets meet the monetary criteria under 15-1(1).

 

[9]               The defendant points to Rule 15-1(14) which give the court discretion to adjourn the trial at the trial management conference if the judge considers that the trial will likely require more than three days. Furthermore, the defence observes that costs under Rule 15-1(15) are limited to a three-day trial. Taken together, the inference to be drawn is the Lieutenant Governor-in-Council intended fast track to apply to only those trials that can be completed in three days.

 

[10]           In contrast, the plaintiff points to the use of the word “or” (as opposed to “and”) under Rule 15-1(1) (a) through (d). The use of this disjunctive suggests that fast track can apply to a variety of scenarios. A party is not restricted to completing the action within three days; that is merely one criteria for conducting an action in fast track.

 

[11]           The plaintiff further observes that under Rule 15-1(3), the court may award damages to a plaintiff for an amount in excess of $100,000 even though the action was commenced in fast track under the monetary criteria.

 

[12]           The plaintiff accepts the risk that she may not recover costs for the additional two days of trial.

 

[13]           While there may be no judicial consideration of this issue, there is a helpful analysis of Rule 15-1 in McLachlin & Taylor, British Columbia Practice (Third Edition), at pp. 15-1 to 15-3.

 

[14]           The learned author states:

 

One could say that the 3-day trial limit is a condition subsequent to the continuing application of Rule 15-1, but the rules cited do not go that far. Put in other terms, it cannot be said that condition (c) is a true condition subsequent to the operation of Rule 15-1. Rather, if in the event it is not satisfied, that can result (depending on the stage of the proceeding when this is found to be the case) in the loss of a trial date or a denial of costs for the fourth and subsequent days of trial, but the action continues to be a fast track action until and unless the court, on its own motion or on the application of a party, so orders under Rule 15-1 (6).

 

[15]           I agree with this analysis.

 

[16]           There is no application before me to remove the action from fast track on any other grounds.

 

[17]           Accordingly, as a matter of statutory interpretation, the plaintiff’s position on the issue is correct.

 

In Sandhu v Roy, the lawyer for ICBC had set both motor vehicle accident cases down for the fast track procedure, however the Plaintiff objected, stating that the matters were worth more than $100,000, and would take longer than three days. The Court confirmed the decision in Hemani v Hillard, commenting that:

 

[12]         The defendants’ point that the prerequisites for a Fast Track Notice are listed disjunctively is sound. In Hemani, Master Bouck recognized the disjunctive list of criteria in Rule 15-1(1), as allowing for a case requiring more than three days to be set on Fast Track, and held that an action will not be removed from Fast Track on an application under 15-1(6) for that reason alone. Rule 15-1, however, presents something of a conundrum on the question of removal of an action from Fast Track as a result of an estimated trial length beyond three days. If the action proceeds to a Trial Management Conference, Rule 15-1(14) applies:

 

If trial will require more than 3 days

 

(14)      If, as a result of the trial management conference in a fast track action, the trial management conference judge considers that the trial will likely require more than 3 days, the trial management conference judge

 

(a)        may adjourn the trial to a date to be fixed as if the action were not subject to this rule.

 

[13]         In a case like this one, where only three days are set aside for trial and the circumstances indicate that significantly more days are required, should the matter proceed to a Trial Management Conference, the court would in most cases be forced to require a second trial date be set, and may often be called on to remove the action from the strictures of the Rule.

 

[14]         In Hemani, the plaintiff set the proceeding for Fast Track and the objection came from the defence. The plaintiff in that case was willing to forego the extra costs of a trial exceeding three days. There is no mention of a liability defence in Hemani and the concession likely was of some singular significance. Here, the case was set on Fast Track by the defence and plaintiff’s counsel, if forced to defend liability, wants to pursue the full costs of the proceeding. Further, pleading a full defence while otherwise taking an ambiguous position on liability does nothing to promote the simplified procedure under Rule 15-1, or the Rule 1-3 general objective of promoting a just, speedy and inexpensive determination of every proceeding.

 

[15]          I find 2 points of distinction between this application and the decision in the Hemani action:

 

1)       In the Hemani case the proceedings had not advanced to the stage of setting trial dates and there may have been the prospect of simplification of the case before that step was taken, whereas in this matter the actions as plead will not only require more than three days, they are presently set for that inadequate length of trial and subject to adjournment under Rule 15-1(14).

 

2)       Here the party objecting to the Fast Track proceeding can demonstrate that significant costs may be denied if forced into a longer trial than the 3-day costs provision under Fast Track can compensate.

 

[16]         I find merit in plaintiff’s application and would accede to the adjournment of the trial and removal of the action from the Fast Track Program. I consider, however, that the orders may not ultimately be necessary if liability for the two collisions were to be admitted. Defence counsel should be given the opportunity to re-assess his position once the effect of this decision is known. Accordingly, I will stipulate that the two orders will become effective should the liability issues not be settled within 14 days of these Reasons.

 

COSTS in FAST TRACK MATTERS

 

In Berekoff v. McMath, the Plaintiff was injured in a motor vehicle collision, and consequently brought an ICBC claim for damages for pain and suffering, as well as various other forms of damages. The matter was set down as a fast track matter, pursuant to Rule 15 of the Civil Rules of Court. As like the vast majority of ICBC claims, the matter settled before trial, in this particular case approximately three months before trial. An issue arose as to what costs should be payable, given that the matter did not actually proceed to a full trial. Normally, the “cap” amount for fast track matters that do not proceed to trial is $6,500. Counsel for the Plaintiff argued for the full amount, while ICBC’S lawyer argued that a significant reduction should be made, as, in the opinion of ICBC’S counsel, not all of the preparation for trial had been done. The Court, after reviewing the law on this issue, ruled that the full amount of $6,500 would be applicable.

 

[4]             In Christen, the settlement occurred on March 12, 2013, well in advance of a three day trial scheduled for October 28, 2013. The lists of documents had been exchanged, further document disclosure was demanded and made, the case planning conference had been held, the Plaintiff had been examined for discovery, an independent medical examination had been conducted of the Plaintiff, and the parties engaged in extensive and lengthy negotiations that resulted in a settlement.

[5]             The Defendant pointed to matters that might reasonably be considered to be left as further preparation for the Plaintiff to be ready for the trial if that eventuality came to be. Madam Justice Arnold-Bailey said:

Generally, further proceedings regarding costs in relation to fast track actions or actions under its predecessor rule, Rule 66 of the Rules of Court, are to be discouraged.  Such proceedings serve to drive up the cost of litigation in a regime of simplified and streamlined proceedings designed to reduce such costs.  There is a significant overall benefit to fixing costs as Rule 15‑1(15) does by reflecting the amounts of costs that the successful party would normally receive.

[6]             Accordingly, Madam Justice Arnold-Bailey awarded the Plaintiff the full “cap amount.”

[7]             In this case, I am satisfied on the evidence that very significant preparation had been done by Mr. Caissie on behalf of the Plaintiff. He submitted if the case had not settled all he would have been left to complete was the final preparation of his client to give evidence at trial, to prepare the Plaintiff’s family physician and his chiropractor to ready them for giving their evidence at trial, and lastly, an attendance at a trial management conference that would have been held on July 11, 2013.

[8]             With all of this I would have awarded the Plaintiff the entire cap amount of $6,500. However, Mr. Caissie had agreed before this hearing that a 10% reduction should be applied and as such I will allow the costs as claimed of $5,850 plus applicable taxes.

 

In Peacock v. Battel et al., the Plaintiff was involved in two motor vehicle accidents, and brought an ICBC claim for damages as a result. Although only one of the matters was brought via the fast track route, the Court ruled that the fast track rules applied to both matters. In total, the trial for both accidents lasted five days. ICBC’S lawyer argued that the costs should be capped at the usual $11,000 for fast track matters, however the Court used its’ discretionary power and ruled that there would be an additional $1,500 awarded to the Plaintiff for each day of trial.

 

[17]         It is open to a court to “otherwise order” in cases where special circumstances warrant the departure from the limits set out in R. 15-1(15)

 

[20]         Madam Justice Neilson held that the formula set out in Anderson v. Routbard, 2007 BCCA 193 should be applied to determine what amount should be awarded. This formula involves first determining what portion of the lump sum provided for in the Rule is for pre-trial and trial costs. Madam Justice Neilson calculated this by taking the amount enumerated for a one day or less trial and subtracting it from the amount allowed for a two day or more trial. The difference is then multiplied by the number of days that the trial went over (paras. 31, 39).

 

[21]         Similarly, this approach was used in Lam v. Chui, 2013 BCSC 1281 where the court considered the appropriate costs award in a fast track action where the trial took 13.5 days. The court held that the plaintiff was entitled to costs for 11.5 days after it deducted 2 days representing time wasted as a result of an error made by the parties concerning the date of the loan in question. Calculating the cost of a trial day at $1, 500 using the formula from Majewska, the court determined that the plaintiff was entitled to $23, 750 in costs ($11,000 for the first three days of trial and $1,500 per day for 8.5 days). The same approach was used in Shiekh v. Struys, 2013 BCSC 1148.

 

[23]         In the case at bar, the trial took two days longer than contemplated by R. 15-1(15)(c). Applying the authorities discussed above, in my view, the costs award should exceed $11,000 by adding a further $1,500 for each of the additional days of trial for a total costs award of $14,000 not including disbursements.

 

In Travelbea v. Henrie, the Plaintiff was injured in a motor vehicle accident, and brought an ICBC claim for damages for pain and suffering, and for other heads of damages as well. The Plaintiff was successful at trial, which had proceeded via the fast track litigation route. An issue arose as to the Plaintiff’s entitlement to costs. Counsel for the Plaintiff argued that such costs should be awarded under Scale B, which is not the usual way costs are awarded in fast track matters, whereas ICBC’S lawyer argued that costs should be awarded on a lump sum basis, which is the customary, default position. Counsel for the Plaintiff argued for an increased costs award due to the fact that the trial took longer than three days, and also asked the Court to exercise its’ discretion to make an Order removing the case from the fast track regime, and to exercise its’ discretion to award more than the customary set amount of costs for fast track matters. Eventually the Court would rule that, under the circumstances of this case, that there was no good reason to depart from the normal rule for costs in fast track matters, and granted the Plaintiff the set sum of $11,000.

 

[6]           In general, the case was conducted in accordance with the parameters set by Rule 15-1. The plaintiff did not conduct an examination for discovery of the defendant. The defendant’s examination for discovery of the plaintiff was completed within two hours. There were no interlocutory applications by either party. The only substantive exception to the limitations imposed by the fast-track regime is that the trial spanned four day

 

[10]        The only aspect of this case to which the plaintiff points by way of special circumstance is that the trial was set for four days and, in fact, took almost four days to be heard. I am not persuaded that the circumstance is sufficient to justify otherwise ordering. First, when the notice of trial was filed indicating that four days would be necessary, the plaintiff was content that the matter should remain in the fast-track regime. That is apparent by virtue of the endorsement on the notice and the fact that no application to the court or request to the defendant was made seeking to remove the case from the regime. Second, although the trial took more than three days, it took only marginally more, less than half a day.

 

[11]        I acknowledge the plaintiff’s submission that the case may have taken much longer had counsel not dealt with the matter so efficiently and co-operatively. To accede to that submission would be, in effect, to sanction a party for doing that which the Rules are intended to promote, namely, to conduct trials in an expedient and efficient way.

 

[12]        In the result, I am satisfied that the lump sum costs provided for in Rule 15 ought to be imposed in this case, and I order that the plaintiff is entitled to costs under Rule 15-1(15)(c) in the amount of $11,000.

 

In Ostadsaraie v. Shokri, the Plaintiff was injured in a motor vehicle accident, and brought an ICBC claim for damages. The matter proceeded via the fast track route, and settled before trial. Under such circumstances, there is a $6,500.00 costs cap. The Court awarded that amount in this case, commenting that it would take compelling facts and circumstances to depart from the general default rule.

 

[2]             There has been some recent judicial consideration of whether or not the costs that should be awarded to the plaintiff in these circumstances should be reduced from what is called the “cap amount” or $6,500, for a case that settles before trial to take into account that not all preparation has been done to have the matter ready for trial and that should be reflected in some reduction of the $6,500 “cap amount”.

 

[8]             In this case, Ms Neathway had done a substantial amount of preparation and delivered a settlement offer that resulted in a settlement of the case some 55 days before trial. There was a housekeeping matter left to be done, a trial management conference – but given the settlement, it did not occur.

 

[9]             Ms Neathway had delivered all of her expert reports and had prepared and completed all of the discovery in readiness for trial. She was frank to say that she would have needed to interview again one or more of the witnesses that would be called at trial and of course complete the final preparations for her client to give his evidence at trial. Nonetheless, a substantial amount of the preparation had in fact been completed by the time the settlement was made and in the circumstances it is appropriate to award the plaintiff the full amount of the cap, being $6500.

 

In Narain v. Gill and ICBC, the Plaintiff was injured in a motor vehicle accident, and brought an ICBC claim for damages. ICBC’S lawyer filed a fast track Notice early on in the proceedings. Damages awarded to the Plaintiff exceeded $100,000.00. The amount of costs to be awarded, and whether this amount would fall under the lesser scale of costs provided for in fast track actions, became an issue. The Court ruled that the Plaintiff’s valuation of the amount of damages is a driving factor in any costs assessment, and awarded costs on a higher scale.

 

[12]         Counsel for the third party argues that the plaintiff was notified that the third party considered this to be under Rule 15-1 with the filing of the notice and a matter is only removed from fast track by court order, either by the court on its own motion, or the application of any party and the court so orders, as provided by Rule 15-1(6)…

 

[17]         As I read Rule 15-1(2), the simple filing of a notice of fast track action in form 61 does not turn any action into a fast track action; rather, any party may file such notice “if this rule applies to an action” [my emphasis]. It is Rule 15-1(1) that defines when the rule applies, and it is important to note that the monetary criteria set out in subrule (1)(a) depends on the total amount of money claimed by the plaintiff for pecuniary loss and to be claimed by the plaintiff for non-pecuniary loss.

 

[18]         Counsel for the plaintiff in the case at bar communicated to counsel for the third party his belief that the claims being advanced exceeded the $100,000.00 limit. After that communication, there was no insistence on the action proceeding as a fast track action, and it would be reasonable to infer from third party counsel’s subsequent conduct in not adding the required notation to subsequent filings, agreeing to an extension of the trial estimate to five days and making a formal offer exceeding the $100,000.00 limit, that third party counsel had tacitly agreed with plaintiff counsel’s view that this was not an action to which Rule 15-1 should apply.

 

In Coutakis v. Lean, the Plaintiff was injured in a motor vehicle accident, and brought an ICBC claim for damages. The matter went through the fast track procedure, however took more than three days to complete. Normally, under fast track matters, there is a costs cap, however in this case, despite the matter going beyond the allowable trial time limit for fast track matters, the Plaintiff argued that the costs cap should not apply. The Court, under the circumstances, agreed.

 

[10]         Under subrule 15-1(15), the court is given a wide discretion to order an amount of costs other than the fixed amounts set out therein.  In my view, this is a case which clearly calls for the exercise of that discretion, in favour of the plaintiff.  That the hearing of the evidence took three days, rather than two, was largely as a result of the defence’s cross-examination of four of the plaintiff’s treating physicians, and the defence’s tendering as opinion evidence of the consultation report of a neurosurgeon.  Hearing the evidence of all of these physicians took more than three hours, and, as I stated in my judgment, all of it was ineffectual.  Further time was spent hearing irrelevant evidence from the defendant.

 

[11]         I find that the plaintiff is entitled to costs for each of the four days spent hearing evidence and argument, and for the fifth day which was scheduled but on which the trial did not proceed.

 

[12]         The plaintiff seeks a further allocation for additional preparation associated with the trial being continued eight months after it commenced.  Having reviewed the evidence before the court on the third day of trial, I do not think that the additional preparation would likely have been significant, and in any event any further cost incurred by the plaintiff is addressed by having awarded the plaintiff full costs for the aborted day of trial.

 

[13]         Using the amounts prescribed in the subrule as reference points, I award the plaintiff base costs of $14,000, plus disbursements.