2012 BCSC 871
British Columbia Supreme Court
Canwood International Inc. v. Bork
2012 CarswellBC 1745, 2012 BCSC 871, [2012] B.C.W.L.D. 6259, [2012] B.C.W.L.D. 6261, [2012] B.C.W.L.D. 6262, [2012] B.C.W.L.D. 6271, [2012] B.C.W.L.D. 6298, [2012] B.C.W.L.D. 6497, [2012] B.C.W.L.D. 6598, 217 A.C.W.S. (3d) 35
In the Matter of the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241
In the Matter of the Employment Standards Act, R.S.B.C. 1996, c. 113
Canwood International Inc., Petitioner and Olaf Bork, Employment Standards Tribunal, Director of Employment Standards and Attorney General of British Columbia, Respondents
Harris J.
Heard: January 16-20, 2012
Judgment: June 14, 2012
Docket: Vancouver S096089
Proceedings: additional reasons to Canwood International Inc. v. Bork (2012), 2012 BCSC 578, 2012 CarswellBC 1092 (B.C. S.C.)
Counsel: James G. Matkin, Q.C., for Petitioner
Ib S. Petersen, for Respondent, Olaf Bork
Subject: Civil Practice and Procedure; Public; Constitutional; Employment
Related Abridgment Classifications
For all relevant Canadian Abridgment Classifications refer to highest level of case via History.
Headnote
Administrative law — Practice and procedure — On application for certiorari — Costs
Director of Employment Standards accepted claimant’s argument that he was entitled to $60,000 bonus associated with completion of rail spur, finding that employer owed claimant $60,000 in wages — Employment Standards Tribunal upheld decision on employer’s appeal and on reconsideration — Employer’s application for judicial review was dismissed — Costs submissions received — Claimant entitled to costs from employer on Scale C — Employer raised seven grounds of judicial review, including constitutional issues going to jurisdiction that were only finally articulated adequately at hearing itself — Matters were inherently complex, but made more complex than they needed to be, and hearing took longer than it ought to have done — There was unexplained delay, unnecessary pre-trial applications, and employer failed to advance case in procedurally appropriate ways — There was no reason to depart from general rule that costs followed event, and novelty and complexity of constitutional issue supported award of costs on Scale C — Record did not support claimant’s argument that employer used delay tactics or attempted to have him abandon petition to frustrate award of bonus — No issue had been taken with claimant’s draft bill of costs and disbursements and so costs would be ordered on Scale C as set out in draft bill.
Table of Authorities
Cases considered by Harris J.:
Antrobus v. Antrobus (2012), 2012 BCSC 613, 2012 CarswellBC 1196 (B.C. S.C.) — followed
Rules considered:
Supreme Court Civil Rules, B.C. Reg. 168/2009
App. B, s. 2(2)(c) — referred to
ADDITIONAL REASONS relating to costs of judgment reported at Canwood International Inc. v. Bork (2012), 2012 BCSC 578, 2012 CarswellBC 1092 (B.C. S.C.), dismissing employer’s application for judicial review of decision ordering payment of bonus to claimant.
Harris J.:
1 This is an application for costs brought by the respondent, Mr. Bork. This application arises out of the dismissal of a judicial review petition. My reasons for dismissing the petition for judicial review are indexed as: [Canwood International Inc. v. Bork] 2012 BCSC 578 (B.C. S.C.).
2 In those reasons, I dismissed an application by Mr. Bork for special costs, but invited further written submissions on the question of the appropriate scale of costs. I dismissed the application for special costs in the following terms, much of which remains relevant to the question of the scale of costs:
[185] Mr. Bork applies for special costs in the event that the petition for judicial review is dismissed. In support of his application for special costs, Mr. Bork submits the following. He says that the petition for judicial review has been litigated in a manner that frustrates Mr. Bork’s right to an efficient and cost-effective determination of his entitlement to a bonus. Originally, the petition improperly named Mr. Bork’s counsel as a respondent. The petitioner has consistently attempted to expand the issues in dispute, failed to properly define the constitutional issues, repeatedly proceeded in procedurally irregular and improper ways and failed to advance the petition to a determination on its merits in a responsible and timely manner. Mr. Bork says that he has been denied payment of the monies owing to him without a proper basis. In short, he submits that the petition for judicial review was always without merit, but the resolution of it has been made infinitely more complex than it ought to have been. The suggestion is that there has been a deliberate effort to frustrate Mr. Bork’s entitlement to his judgment.
[186] There is no doubt that there is much merit in what Mr. Bork has to say. The petitioner has continually shifted position and attempted to expand the issues before the Court. It did so also before the Tribunal. This matter has taken too long to come to court. As I noted above, the petitioner has not provided a satisfactory explanation of the lengthy delay involved in these proceedings. The application to amend the petition was, in my view, misconceived. Proper procedures have been flouted with disturbing regularity.
[187] Mr. Matkin did acknowledge that it had taken too long for this matter to be heard on the merits. At some point in the proceeding, Canwood had been represented by counsel. Mr. Matkin took over representing Canwood in his capacity as a director of the company, and not as counsel. Although Mr. Matkin is an experienced lawyer, he did not practice as a litigator. The subtext of his comments on how this matter unfolded procedurally is that mistakes may well have been made, not through ill will, but through a lack of experience in litigation.
[188] Before I can make an award of special costs, I have to be satisfied that the manner in which the proceedings have been undertaken reveals conduct that is reprehensible or worthy of rebuke. Although I understand and sympathise with the frustration felt by the respondents in dealing with this matter, I cannot conclude that matters have risen to the level that the petitioner’s conduct has been reprehensible or deserving of rebuke.
[189] I reject the application for special costs. I am prepared to entertain brief written submissions on the question of the appropriate scale of costs.
3 Mr. Bork argues that these considerations support an award of costs on Scale C. As observed by Madam Justice Smith in Antrobus v. Antrobus, 2012 BCSC 613 (B.C. S.C.):
[11] Scale C costs are appropriate for matters of more than ordinary difficulty. In Mort v. Board of School Trustees of School Board No. 63 (Saanich), 2001 BCSC 1473at para. 6, the criteria to be considered were said to be:
(a) the length of the trial;
(b) the complexity of the issues involved;
(c) the number and complexity of pretrial applications;
(d) whether the action was hard-fought, with little or nothing conceded along the way;
(e) the number and length of the examinations for discovery;
(f) the number and complexity of experts’ reports; and
(g) the extent of the effort required in the collection and proof of facts.
4 The issues in this judicial review were complex. The petitioner raised seven grounds of judicial review, including constitutional issues going to jurisdiction. The considerations that I have set out at para. 2 indicate the procedural complexity, unexplained delay and the failure to advance the case in procedurally appropriate ways. As a result, there were a number of pretrial applications, which in my view, were unnecessary. The constitutional issue was only finally adequately articulated at the hearing itself.
5 I am satisfied that this matter was one of more than ordinary difficulty. The hearing took longer than it ought to have done. The issues were made more complex than they needed to be, but were inherently complex. A cursory review of the reasons for judgment dismissing the petition is sufficient to illustrate that proposition. There were numerous pretrial applications, not least of which were those in front of me in which I have to determine what the record was upon which the judicial review was proceeding.
6 In my view, the petitioner’s argument to avoid costs being awarded on Scale C is without merit. The issue is not whether costs should be awarded. There is no reason to depart from the general rule that costs follow the event. Accordingly, the novelty and complexity of the constitutional issue supports an award on Scale C. The record does not support the petitioner’s argument that the respondents used delay tactics or attempted to have the petitioner abandon the petition out of frustration. Quite the contrary. Moreover, an application to determine the appropriate scale of costs is not an invitation to reargue the merits or advance propositions more properly the subject of an appeal.
7 Mr. Bork has provided a draft bill of costs which was the subject of correspondence between the parties. Although, I am told, that correspondence revealed that there was little difference between the parties over the number of units, no issue has been taken with the draft bill of costs and disbursements in this application. Similarly, no issue has been taken with me assessing those costs and disbursements to avoid the further delay and expense of taxation. I therefore order costs and disbursements on Scale C as set out in the draft bill attached to Mr. Bork’s submissions.
Order accordingly.
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