2007 BCSC 189 Ward v. City of Vancouver

Before: The Honourable Mr. Justice=20 Tysoe

Supplementary = Reasons for=20 Judgment

Counsel for the = Plaintiff:

Brian M. = Samuels

Counsel for the Defendants, = City of=20 Vancouver, Sergeant Kelly, Constable Prasobsin, Constable Fodor, = Sergeant=20 Gatto and Constable Cope:

Tomasz=20 M. Zworski

Counsel for the Defendant, = Her Majesty=20 the Queen in Right of the Province of British=20 Columbia:

J.=20 Edward Gouge, Q.C.,
Bryant A. Mackey and
Karen A.=20 Horsman

Dates of Filing of Written=20 Submissions:

January 15, 22 & 29,=20 2007

[1] = ; =20 On January 2, 2007, I issued Reasons for Judgment (cited as 2007 = BCSC 3)=20 in which I awarded damages to Mr. Ward against the Defendant, the City = of=20 Vancouver, in the amount of $5,100 and against the Defendant, Her = Majesty the=20 Queen in Right of the Province of British Columbia, (the =93Provincial=20 Government=94) in the amount of $5,000. I found that the = individual police=20 officers named as Defendants (the =93Police Officers=94) were not = personally liable=20 to Mr. Ward.

[2] = ; =20 Counsel reserved their right to make submissions on the topic of = costs=20 until the release of my decision and I advised that, if all of them = agreed, the=20 submissions on costs could be in written form without the necessity of = an oral=20 hearing. Counsel did all agree to make written submissions, which = I have=20 now received.

[3] = ; =20 It is common ground that Rule 57(10) of the Rules of Court = has no=20 application to this case. The Provincial Court does not have = jurisdiction=20 in proceedings against the government under the Small Claims Act = where=20 the claims involve the Canadian Charter of Rights and Freedoms: = see s. 5=20 of the Crown Proceeding Act, R.S.B.C. 1996, c. = 89.

[4] = ; =20 Mr. Ward requests party and party costs assessed at Scale B of = Appendix B=20 to the Rules of Court up to October 18, 2006 and double costs=20 thereafter. Both of the counsel acting for the Defendants appear = to be=20 under the impression that Mr. Ward is seeking special costs. I do = not=20 share that impression and, in any event, there is no basis for ordering = special=20 costs against any of the Defendants.

[5] = ; =20 The request for double costs is based on the fact that on October = 18,=20 2006, Mr. Ward offered to settle this action on the basis that the = Defendants=20 provide letters of apology in which it was to be stated that the police = had no=20 right to handcuff him, refuse to provide him with an opportunity to = consult=20 legal counsel, transport him to jail in a police wagon, strip search his = person,=20 detain him in the Vancouver Jail and seize his vehicle and that the = corrections=20 staff had no right to conduct a strip search of his = person.

[6] = ; =20 Even if such an offer to settle falls within the purview of Rule = 37A, I=20 held in the Reasons for Judgment that the police were entitled to = handcuff Mr.=20 Ward, transport him to jail and detain him in the Vancouver Jail for a = period of=20 time. I also found that a breach of s. 10(b) of the Charter = had not=20 been pleaded. Mr. Ward did not succeed on claims in respect of = which his=20 offer to settle called for an apology. It cannot be said that the=20 judgments I granted in favour of Mr. Ward were more favourable than the = offer to=20 settle.

[7] = ; =20 The Defendants say that there was divided success and that the = parties=20 should therefore bear their own costs. The court has the = jurisdiction=20 pursuant to Rule 57(15) to award costs that relate to a particular issue = or part=20 of the action, and an order under Rule 57(15) could result in the = parties=20 bearing their own costs. However, the issues in respect of which = Mr. Ward=20 was unsuccessful did not, in my view, lengthen the trial. I would = have=20 heard all of the same evidence if Mr. Ward had not made the claims upon = which he=20 was unsuccessful. In these circumstances, it is not appropriate in = my=20 opinion to make an order under Rule 57(15) in connection with the claims = against=20 the City of Vancouver and the Provincial Government.

[8] = ; =20 Counsel for the Police Officers, who is also counsel for the City = of=20 Vancouver, submits that costs should be awarded to the Police Officers = and that=20 the costs should be special costs because Mr. Ward pleaded that their = conduct=20 was malicious. In my opinion, it is appropriate to award costs to = the=20 Police Officers in respect of steps taken by their counsel which he took = on=20 their behalf alone and which he would not have otherwise taken as = counsel also=20 representing the City of Vancouver, but excluding the costs of the Rule = 18A=20 application unsuccessfully made by the Police Officers (which Romilly J. = granted=20 to Mr. Ward in 2003 BCSC 1158). This would include the three = examinations=20 for discovery of the Police Officers who were not discovered as = representatives=20 of the City of Vancouver. The allegation of malicious misconduct = was made=20 as part of the attempt to attribute personal liability to the Police = Officers=20 and, in my opinion, it does not constitute reprehensible conduct = justifying an=20 award of special costs.

[9] = ; =20 Counsel for Mr. Ward says that if costs are awarded to the Police = Officers, there should be a Bullock order under Rule 57(18) = requiring=20 that those costs be paid by the other Defendants. In Robertson = v. North=20 Island College Technical and Vocational Institute (1980), 26 = B.C.L.R. 225=20 (C.A.), the B.C. Court of Appeal adopted the following statement of the=20 threshold question for a Bullock order from=20 Besterman v. British Motor Cab Company Ltd., [1914] 3 K.B. 181 = (Eng.=20 C.A.) at p. 186:

Under these=20 circumstances, was it a reasonable thing for the plaintiff in his action = against=20 a man who ultimately turns out to be in fact the wrong-doer to join the = other=20 defendant in order that the matter might be thoroughly threshed=20 out?

In the present case, this threshold has not = been met=20 because the City of Vancouver was vicariously liable for any torts = committed by=20 the Police Officers pursuant to s. 20 of the Police Act, R.S.B.C. = 1996,=20 c. 367. It was not reasonably necessary to have joined the Police = Officers=20 to this action.

[10] = ;=20 In the result:

(a) I award Mr. Ward = his costs of=20 this action, except the cost of steps taken against the Police Officers = alone,=20 against the City of Vancouver and the Provincial Government, on a party = and=20 party basis, to be assessed at Scale B of Appendix B to the Rules of=20 Court;

(b) I award the = Police Officers=20 the costs of steps taken by their counsel which he took on their behalf = alone=20 other than the Rule 18A application, against Mr. Ward, on a party and = party=20 basis, to be assessed at Scale B of Appendix B to the Rules of = Court;=20 and

(c) the costs which I = have=20 awarded to the Police Officers and the costs of the Rule 18A application = which=20 Romilly J. awarded to Mr. Ward are to be set off against each=20 other.

[11] = ;=20 Counsel for the City of Vancouver and counsel for the Provincial=20 Government are agreed as to the allocation of the costs between their=20 clients. They may allocate the costs in accordance with this = agreement,=20 provided that Mr. Ward is paid all of the costs to which he is=20 entitled.

=93D. = Tysoe,=20 J.=94
The Honourable Mr. Justice D. = Tysoe