Subject: 2007 BCSC 189 Ward v. City of Vancouver
From: <Saved by Windows Internet Explorer 7>
Date: Sat, 15 Mar 2008 04:42:21 -0700

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Ward v. City of Vancouver,

2007 BCSC 189

Date: 20070208
Docket: S030038
Registry: Vancouver

Between:

Alan Cameron Ward

Plaintiff

And

City of Vancouver, Her Majesty the Queen in Right of
the Province of British Columbia, as represented by
the Ministry of Attorney General and Ministry of Public
Safety and Solicitor General, Her Majesty in Right of
Canada, Attorney General of Canada, Sergeant Kelly,
Constable Prasobsin, Constable Fodor, Sergeant Gatto,
Constable Cope and other unidentified members of
the Vancouver Police Department, Royal Canadian
Mounted Police and Jail Staff of the Vancouver Jail

Defendants

Before: The Honourable Mr. Justice Tysoe

Supplementary Reasons for Judgment

Counsel for the Plaintiff:

Brian M. Samuels

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

Tomasz M. Zworski

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

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

Dates of Filing of Written Submissions:

January 15, 22 & 29, 2007

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

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

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

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

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

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

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

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

[9]                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 that those costs be paid by the other Defendants.  In Robertson v. North Island College Technical and Vocational Institute (1980), 26 B.C.L.R. 225 (C.A.), the B.C. Court of Appeal adopted the following statement of the threshold question for a Bullock order from Besterman v. British Motor Cab Company Ltd., [1914] 3 K.B. 181 (Eng. C.A.) at p. 186:

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

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

[10]            In the result:

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

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

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

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

“D. Tysoe, J.”
The Honourable Mr. Justice D. Tysoe