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Court of Appeal Upholds Award of Costs Where Justice Demands It

Reasons were provided today by the Court of Appeal in the case of Gradek v. Daimler Chrysler Financial Services Canada Inc. and Fletcher, 2011 BCCA 136 dismissing an appeal of a decision of trial judge allowing legal costs of $6,600 to be paid to a plaintiff who recovered damages totalling approximately $9,685.00 after a two day trial in the Supreme Court of British Columbia.
At trial the ICBC’s lawyers argued that sufficient reasons for allowing costs in cases where a plaintiff recovered less than $25,000 in the Supreme Court should be narrowly construed to relate only to the quantum of the claim at the time the action was commenced.  The trial judge held that the law did not support the narrow approach preferred by the defendants. He held that the fact that the plaintiff was a Polish immigrant who had difficulty expressing himself provided the sufficient reason required by the Rules of Court for an order for costs. Given that Mr. Gradek would have had “extraordinary difficulty presenting a case on his own”, the judge determined that he “required counsel to obtain a just result”.
On appeal ICBC’s lawyers argued that the trial judge’s finding that it was likely that Mr. Gradek’s claim was worth less than $25,000 at the time his legal action was commenced decided the issue of costs. The Court of Appeal disagreed with this “all or nothing approach”. Writing for the Court, Madam Justice Prowse held that “there may be circumstances which may constitute sufficient reasons for bringing an action in the Supreme Court…despite the fact that it is apparent from the outset that the award will fall within the monetary jurisdiction of the Provincial Court”. She went on to say that a trial judge should not be “forced” to deny a successful party costs in situations where “justice can only be achieved as between the parties by an award of costs to the successful party”.


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