Throwing Good Money After Bad: An Expensive Lesson

Going through a personal injury trial can be a stressful. A ruling in your favour can do a lot to mitigate that stress. But sometimes winning isn’t necessarily enough to make the victor whole. Take for example the successful plaintiff in a British Columbia case, who appealed the court’s decision, which despite being in her favour, only granted her $20 in costs towards $2,651 she paid for her physician to be an expert witness.


The plaintiff’s original case arose from a motor vehicle accident. During the original trial, she called her family physician as a fact witness to support her claim. She ended up winning at trial, but the defendant disputed the costs associated with brining in the doctor as a fact witness. The plaintiff was only awarded $20 in costs for the doctor, as provided for in Schedule C of the province’s Rules, despite the bill being $2,651. This is because British Columbia law only provides $20 to cover the subpoena costs of bringing in witnesses of fact; meaning those who testify about the facts of a case. These witnesses are distinct from expert opinion witnesses, who can be called to give expert evidence in the form on an opinion. The later of the two’s fees can be recovered to a higher degree than the former.

The costs order, which came from a Registrar, was appealed by the Plaintiff. On appeal, the plaintiff argued that the $20 awarded to her to go towards the doctor’s fees was “very low.” While this may be true, the distinction between an expert fact witness and an expert opinion witness are significant when it comes to recovering costs.

Costs of the appeal

The appeal was dismissed, at which point the plaintiff asked for costs (amounting to $107,282) to be split between the parties. It was the plaintiff’s position that the circumstances of the case engage matters of public interest, which justifies departing from the usual rule that provides costs to the successful party. The judge noted that the issue was one of interest to the legal profession, and that a decision from a senior court would be helpful. The province’s court of appeal agreed to hear the case.

The plaintiff argued that since the appeal judge agreed the issue was one of interest to the legal profession, and since it was the first time this specific question was asked of the courts, there was a public benefit to having it heard by the province’s highest court.

The court’s analysis

The awarding of costs in appeals are determined by Section 23 of British Columbia’s Court of Appeal Act, which states that unless the court otherwise orders, the successful part is entitled to costs of appeal. While the court has broad discretion to depart from this rule, it is unusual for the court to do so. The question, according to the court, is whether the usual rule is suitable in the circumstances before it. The province’s Court of Appeal provided the factors to consider when determining whether a departure is appropriate in a 2005 decision. The factors are whether:

  1. The proceeding involves issues the importance of which extends beyond the immediate interests of the parties involved.
  2. The person has no personal, proprietary or pecuniary interest in the outcome of the proceeding, or, if he or she has an interest, it clearly does not justify the proceeding economically.
  3. The issues have not been previously determined by a court in a proceeding against the same defendant.
  4. The defendant has a clearly superior capacity to bear the costs of the proceeding.
  5. The plaintiff has not engaged in vexatious, frivolous or abusive conduct.

In its analysis, the court noted the plaintiff had little economic benefit in pursuing an appeal. The costs of doing so greatly outweigh the $2,651 being sought. Despite the defendant, and insurance company, having much deeper pockets than the plaintiff, the court still determined that a departure was not necessary.

Reasons to deny the appeal

The court provided three reasons to reject the plaintiff’s position. The first was that despite the relatively small amount of money in question, the plaintiff insisted on pushing the process through two appeals. Had she been the defendant, the court said it may have looked at things differently. The second reason was that while there had not been a similar issue put before the court prior to this, the was a “prevailing practice in the trial court of not allowing attendance fees charged by expert fact witnesses in excess of $20 to be recovered as a disbursement.” Lastly, the court stated that most public interest litigation involves a party who has no pecuniary or proprietary interest at stake. In this case, the plaintiff was awarded over $1 million at trial, but sought a further pecuniary benefit. There were no constitutional issues or issues of exceptional public or national importance.

The court dismissed the appeal and ordered the plaintiff to pay the defendant’s costs.

It is important to seek medical attention if you are involved in a motor vehicle accident. Your injuries might seem insignificant at first, but there could issues that are not readily apparent. Once your wellbeing is looked after, you should speak to an experienced personal injury lawyer in order to determine if you may be entitled to damages stemming from the accident. The outstanding personal injury lawyers at Derfel Injury Law work to get our clients every penny they deserve. Please call us at 416.847.3580 or reach us online to see how we can help you today.