Court of Appeal Decision of the Week

Trial Costs: Are “Expert Fact Witness” Fees Recoverable?

Case: Luis v. Marchiori, 2018 BCCA 364 (CanLII)

Keywords: MVA, Expert Fact Witness Costs, Public Interest Litigation

Synopsis:

The Appellant is a personal injury plaintiff in an MVA action. At trial, she calls her family physician as a witness (“a fact witness in support of her claim”, para. 2). After succeeding at trial (awarded both damages & costs) she seeks to recover (as a disbursement) the $2,651 fee her physician charges for attending. At a hearing to settle costs, the Master awards her $20, as provided in “Schedule C” of the Rules. The Appellant appeals unsuccessfully as against this costs award (including at the Court of Appeal).

The Appellant then seeks an order that each party bear its own costs for the costs-related hearings on the basis that the litigation served the public interest. The Court of Appeal declines to depart from the usual rule that successful parties are entitled to costs.

Importance:

Are fees paid to an expert fact witness (as opposed to an expert opinion witness) recoverable as a disbursement to be paid by the opposing party under the Rules? The Appellant submits:

  • that this was the first time the specific practice point was raised in the Court of Appeal;
  • that there was a benefit to the public at large in having a decision rendered; and
  • that it was highly unlikely the issue would ever have come before the Court of Appeal. (See para. 6).

Citing Section 23 of the Court of Appeal Act, R.S.B.C. 1996, c. 77, the Court set out the general rule (i.e. that a successful party is entitled to costs of the appeal). Although the Court enjoys “broad discretion to depart from that rule”, the Court of Appeal in this case determined that doing so would be “unusual”. (See para. 7).

The Court of Appeal observed that the Appellant had twice appealed the initial ruling on costs. For the Court, “If she were the respondent, different considerations might apply. But this is not a case in which Ms. Luis was caught up in an appeal brought by ICBC to sort out a matter of little significance in the particular case but of broader importance to its interests in other litigation.” (See para. 9).

On the other hand, the Court of Appeal did note the B.C.S.C. Judge, on appeal from the Master’s Order, “observed that the issue was one of interest to the legal profession and that a ruling from a senior court might be helpful.” (See para. 4).

Further, the Court of Appeal noted that, notwithstanding the apparent controversy surrounding the Appellant’s underlying issue (including inconsistent lower court decisions and an absence of binding authority on point), there had been “…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”. (See para. 10).

Finally, the Court of Appeal determined this case did not involve “constitutional issues”, “…issues of exceptional public or national importance”, or challenge “…the exercise of any statutory or public authority”. (See para. 11). As such, following the list of factors referred to in Guide Outfitters Assoc. v. British Columbia (Information and Privacy Commissioner), 2005 BCCA 368 (CanLII) at para. 8, the Court of Appeal declined to “disturb the costs orders made in the court below, or to depart from the usual rule in this Court”. (See paras. 7-12).

Counsel for the Appellant: Guy Collette (Collette Parsons Harris, Vancouver)

Counsel for the Respondents: Steven Hoyer, J Archibald, and Ryan Parsons (Eyford Macaulay Shaw & Padmanabhan LLP, Vancouver)

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Posted: Wednesday, October 10, 2018