Bamani-Moghaddam v. Mojdehie,
2010 BCSC 191
Neila Jalil Mojdehie, BMW Canada Inc.
Yaletown Interiors (1994) Ltd.
Subject to Rule 66
Before: District Registrar Sainty
Reasons for Decision
Counsel for the Plaintiff:
Counsel for the Defendants:
Place and Date of Hearing:
Place and Date of Judgment:
 This action relates to a motor vehicle accident that occurred on November 23, 2004 when the plaintiff was stopped at red light at the intersection of Marine Drive and Hanes Avenue (in North Vancouver) and was rear-ended by the defendant Mojdehie. Liability was admitted. The plaintiff claimed to have suffered injuries to her neck, shoulders and upper back as a result of the accident.
 The plaintiff commenced this action on November 20, 2006 pursuant to Rule 66 of the Rules of Court. Following examinations for discovery (held October 5, 2007) the defendants delivered an Offer to Settle under (then) Rule 37 of the Rules of Court offering to settle this matter on the following terms:
1. The sum of FIFTEEN THOUSAND ($15,000.00) DOLLARS (new money), after taking into account Part 7 benefits paid or payable pursuant to Section 25 of the Insurance (Motor Vehicle) Act, R.S.B.C. 1996, c.231, and any advances paid to date; and
2. Costs in accordance with Rule 37(22) and (37).
 Rules 37(22) and (37) [in force at the time the offer was made] provided:
(22) Subject to subrule (22.1), if an offer is accepted,
(a) if the offer was made by the plaintiff, the plaintiff is entitled to costs, or
(b) if the offer was made by the defendant, the plaintiff is entitled to costs assessed to the date the offer was delivered to the plaintiff, and the defendant to costs assessed from that date.
(37) Despite subrule (22), the plaintiff is not entitled to costs other than disbursements if
(a) an offer is accepted for a sum within the jurisdiction of the Provincial Court under the Small Claims Act, and
(b) the proceeding in which the offer was made could appropriately have been brought in the Provincial Court.
 The offer was accepted on December 3, 2007. On December 13, 2007, Mr. McGee (plaintiff’s counsel at the time) wrote to Mr. Carmont (defence counsel at the time):
We confirm that we have settled Farzaneh Bamani-Moghaddam’s claim in this matter for $15,000.00, plus disbursements. We now enclose a schedule of our disbursements for your review.
We look forward to hearing from you at your earliest convenience.
 Some negotiations ensued to resolve the issue of costs (including the defendants’ costs) but no resolution was reached. The plaintiff took out an appointment to assess her costs set for March 25, 2008. Attached to that appointment was a list of disbursements. No claim was included in the plaintiff’s bill of costs for tariff items under Appendix B of the Rules of Court.
 Defence counsel then served its bill of costs on the plaintiff. That bill of costs claimed 31 units for various tariff items, as well as disbursements totalling $2,727.63, including $1,950.60 in investigative services undertaken shortly after the defendants’ offer to settle was served on the plaintiff.
 The assessment of the parties’ costs was adjourned to August 14, 2008.
 A new rule governing offers to settle and the costs consequences thereof (Rule 37B) was promulgated and came into effect on July 1, 2008. That Rule applied to offers to settle made before the Rule came into effect, including this offer to settle in this action. At the time it was enacted, new Rule 37B did not contain a provision equivalent to (former) Rule 37(37).
 The issue of whether a party’s costs would be limited to disbursements only in a case settled within the monetary limits of the Small Claims Act was in a state of flux following the enactment of new Rule 37B. The issue came before this court in Goertz v. Calin, 2008 BCSC 1716. In that case, Garson J. decided (at paragraphs 23-4):
The rule [37B(5)] only permits the Court to deprive a party, "in whole or in part" of her costs to which she "…would otherwise be entitled….after the date of delivery of the offer to settle;" [emphasis added].
Accordingly, there is no basis in R. 37B on which this Court could deprive the plaintiff of costs incurred before the date of the delivery of an offer regardless of whether the ultimate settlement is within the monetary jurisdiction of the Provincial Court.
 On August 13, 2008, the assessment of the plaintiff’s costs was adjourned to October 3, 2008 due to plaintiff’s counsel being double-booked. On September 30, 2008, plaintiff’s counsel delivered an amended bill of costs seeking tariff costs, as well as disbursements, on behalf of the plaintiff and shortly thereafter (on October 1, 2008) advised that they were in the process of preparing motion materials (in accordance with the Icecorp line of decisions) for an order that the plaintiff be entitled to claim her tariff costs, as well as her disbursements, on the basis that it was appropriate for her to bring this action in the Supreme Court, rather than the Provincial, Court of this province. Defence counsel asked that the application be brought quickly.
 Through October to December 2008, there were negotiations to try and settle the costs issues but they remained unresolved when, in January 2009 plaintiff’s counsel delivered its motion for tariff costs. That motion was opposed. Plaintiff’s counsel said it intended to proceed with its motion as soon as possible, but did not proceed in a timely manner.
 Defence counsel changed and nothing much was done until April 2009 when a further attempt was made to settle costs but no dates were set for either an assessment of the parties’ costs or for hearing the plaintiff’s motion.
 Dates were attempted to be set over the summer of 2009 but there was some discord between the parties as to what was to be heard – the plaintiff’s motion or the parties’ respective costs assessments. The parties remained at odds and no dates were secured or agreed to as there was no agreement about what was to be heard.
 In October 2009, the defendants’ counsel served materials, including a motion, pursuant to Rule 57(43) seeking disallowance of the plaintiff’s costs on the basis of her failure to procure her assessment of costs. Rule 57(43) provides:
If a party entitled to costs fails to assess costs and prejudices another party by failing to do so, the registrar may certify the costs of the other party and certify the failure and disallow all costs of the party in default.
 The hearing of the defendants’ motion was set for December 31, 2009 and later adjourned to January 28, 2010.
 On January 26, 2010, the plaintiff reset her assessment of costs for the same date [January 26] by filing a requisition to which was attached a bill of costs claiming both tariff items and disbursements.
 These two matters – the defendants’ motion under Rule 57(43) and the plaintiff’s appointment to assess its costs – came before me on January 28th. I heard from Mr. Harbut (for the plaintiff) and Ms Marshall (for the defence). Ms Marshall argued that, before proceeding to deal in any way with the plaintiff’s costs, I must first decide the defendants’ Rule 57(43) application. I agree.
 In order to succeed under that Rule and have me disallow the plaintiff’s costs and certify those of the defendants, the defendants must show that the party entitled to receive costs (here the plaintiff) has failed to have her costs assessed and that such failure has prejudiced the party bound to pay the costs (the defendants). The burden of proving prejudice caused by delay is upon the person alleging it: see Xerox Canada Inc. v. Sweany (1990), 42 C.P.C. (2d) 101.
 The issue of whether the defendants were prejudiced and whether such prejudice was caused by the plaintiff’s actions are questions of fact to be decided by me on the evidence presented at this hearing: see Standard Trust Company v. 110655 Canada Limited,  B.C.J. No. 1946, at para. 48.
 Here, while there may have been a delay occasioned by the plaintiff in failing to set its motion or assessment in a timely fashion, there is no evidence before me that the defendants have, in any way, been prejudiced by the plaintiff’s failure. All that is before me is a statement in the defendants’ submissions that:
...the plaintiff’s delay in having her costs procured has caused prejudiced [sic] to the defendants with regard to information lost by the virtue of time and Ms. Amanda Groves, the handling lawyer, leaving North Shore Law, as well as prejudice to the defendants with regard to having our own Costs and Disbursements assessed due to concerns about set-off (Bajic v. Friesen [2006 BCSC 1290]). It is submitted that this prejudice was caused by the plaintiff.
 In my view, the defendants have not discharged their burden of proving any prejudice to them caused by the plaintiff’s delay in bringing its application to assess its costs. A simple statement in the defendants’ submissions of an alleged prejudice is not sufficient evidence of any prejudice to them. There is no affidavit from Ms Groves that her retention of the issues was fading. Nor is there any affidavit (or other) evidence that Ms Groves would not be available to assist counsel for the defendants on any assessment of the defendants’ costs.
 Nor, in my view, can it be said that the defendants have been prejudiced by not having their own costs and disbursements assessed as, despite there being a right of setoff of the plaintiff’s disbursements against those of the defendants, even assuming that the plaintiff is only entitled to disbursements and the defendants are completely successful in upholding their bill of costs, the difference between the two bills of cost before me is some $2,908.81, an insubstantial amount in the overall scheme of things in my view.
 Having found that the defendants have not met their burden of proof, I hereby dismiss the defendants’ application under Rule 57(43) of the Rules of Court.
 What then ought I to do?
 Initially Mr. Harbut argued that, if the defendants’ application failed, I ought to proceed to assess the plaintiff’s costs in accordance with the decision of Garson J. in Goertz: i.e., assess both the plaintiff’s tariff costs and her disbursements.
 In considering my options, during the hearing, it came to my attention that the Rules of Court have been amended such that Goertz may no longer be good law. Rule 37B was amended in 2009 to add a new section (Rule 37B(7)) which provides:
37(7) A plaintiff who accepts an offer to settle claims for a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds there was sufficient reason for bringing the proceeding in the Supreme Court and so orders.
 Once I pointed out that provision to Mr. Harbut, he asked that, if I decided to dismiss the defendants’ application, I simply adjourn the assessment of the plaintiff’s costs so that he could bring an application before the Court for a determination (under Rule 37B(7)) that his client had sufficient reason for bringing this action in the Supreme, rather than the Provincial, Court of this province, thus entitling her to claim both tariff items and disbursements.
 The definition section of the Rules of Court provides:
1(8) "court" means the Supreme Court of British Columbia and, where a master has jurisdiction, includes a master of the Supreme Court;
As a registrar of the court is not included in the definition of “court” in the Rules and Rule 37B(7) makes it clear that it is the “court” that must decide if the plaintiff had sufficient reason to bring her action in the Supreme Court, I cannot decide this issue (see Aydin & Co. v. Schaber, 2000 BCSC 925, at para. 7).
 The defendants, on the other hand, submit that I ought not to adjourn this hearing. They say that I ought to find that the parties reached an agreement in respect of costs (i.e. that the plaintiff would receive her disbursements only up to the date of the offer to settle and that the defendant would receive its costs (tariff items and disbursements) thereafter) and proceed to assess the parties’ respective costs on the basis of that agreement.
 In Cathcart v. Olsen 2009 BCSC 618, I held that there were three things from which a registrar might take her jurisdiction to assess a party’s costs:
(a) an order of this Court;
(b) a provision of the Rules of Court allowing for such assessment; and
(c) a settlement agreement between the parties which provides for the payment of costs to be assessed.
Clearly, there is no order or provision of the Rules entitling me to take such jurisdiction here. Ms Marshall submits that what there is is a settlement agreement between the parties which binds them. Accordingly, she submits that all that remains for me to do is assess the parties’ costs in accordance with that agreement.
 Mr. Harbut argues that the parties were never ad idem in respect of the issue of costs. He says that filing the appointment with only a list of disbursements attached cannot be taken as evidence of the plaintiff abandoning her tariff costs or of an agreement between the parties. Accordingly, I ought not to proceed in these circumstances but rather should adjourn this hearing to allow him to bring his Rule 37B(7) application.
 I disagree with Mr. Harbut. In my view, the evidence is clear. The letter from Mr. McGee to Mr. Carmont of December 13, 2007 is unequivocal. It specifically states that the matter has settled for $15,000 “plus disbursements”. It does not say “plus costs and disbursements” (my emphasis). Further evidence of this fact is contained in an email from Mr. McGee to Mr. Carmont of February 4, 2008 which says:
This matter settled over six weeks ago. You have refused to pay the settlement or our disbursements but have indicated that you want some sort of set-off. We have requested your Bill of Costs with supporting documentation and we have received nothing.
Either pay the settlement and disbursements or send us your bill of costs and supporting receipts. We are not settling any amount claimed by the defendant without a BOC. Either you have costs or not. Lets see them.
 In my view, one cannot get much plainer than that – the plaintiff expected to be paid her settlement funds ($15,000) plus her disbursements and to pay the defendants’ costs, not to receive anything for her tariff costs. On the basis of that agreement, I (or any other registrar) am given the jurisdiction to assess the plaintiff’s costs (disbursements only) and those of the defendant and I ought to proceed. Further, as the evidence is unequivocal – the offer was accepted and an agreement made as to costs – the provisions of Rule 37B, including subrule (7) thereof, have no application in this matter and any application by Mr. Harbut is bound, in any event, to fail: see Buttar v. Di Spirito, 2009 BCSC 72, at paragraph 11.
 As I did not entertain submissions at the hearing before me as to the specifics of the plaintiff’s disbursements nor the defendants’ costs I cannot proceed to assess them. Accordingly, the parties will have to set their assessments for determination at a convenient time. I am not, however, seized of the assessment as I have not heard any evidence or submissions about the actual costs or disbursements. However, if I am available to hear the matter, I will certainly do so.
“District Registrar Sainty”