Executive Summary – Key Legal & Evidentiary Issues

• Dispute centers on an employment-related claim between the plaintiff and her former employer.

• Defendant’s late application to adjourn the trial raised procedural fairness concerns.

• Key issue was the appropriateness of awarding full indemnity costs (akin to special costs) for trial preparation wasted due to the adjournment.

• Appellant argued the court lacked jurisdiction to award full indemnity costs without a finding of reprehensible conduct.

• Court examined whether the adjournment was justified and whether the cost sanction was legally permissible.

• Judgment clarified that special costs require misconduct, which was not established in this case.

Facts of the Case

The case arose from an employment dispute between the plaintiff, Tara Trottier, and the defendant, Ronald M. Derrickson, operating as RMD Group. The plaintiff initiated legal action alleging issues related to her prior employment, and the trial was scheduled to commence on November 18, 2024, for an eight-day sitting.

In the lead-up to the trial, both parties submitted trial briefs, with the plaintiff estimating the trial would take eight days, while the defendant estimated ten. Notably, the defendant’s counsel indicated availability for two additional days after the scheduled trial, should the need arise.

However, just days before trial, counsel for the defendant became unavailable due to a conflicting court matter in an unrelated case. This change was not promptly communicated. The defendant then filed a last-minute application to adjourn the trial on November 15, 2024, to be heard the morning before the trial was set to begin.

The associate judge granted the adjournment but awarded costs thrown away for trial preparation to the plaintiff on a "full indemnity basis", a term generally interpreted to mean complete reimbursement of incurred costs.

Arguments and Court’s Analysis

Grounds for Appeal

The defendant appealed solely on the issue of costs, arguing:

1. Jurisdictional Error: The associate judge had no authority to award “full indemnity costs,” which are not recognized under British Columbia's Supreme Court Civil Rules.

2. No Reprehensible Conduct: Such an elevated cost award (akin to special costs) was not justified because the defendant's conduct did not rise to the level of reprehensibility.

The plaintiff countered by arguing that the order fell within the judge’s discretion and was reasonable given the prejudice caused by the late adjournment.

Court’s Evaluation

Justice Wilson of the BCSC overturned the associate judge’s decision and allowed the appeal. The judgment clarified several key points:

• The term “full indemnity costs” is not recognized under the BC Supreme Court Civil Rules, which permit only:

  • Party and party costs (standard partial reimbursement).

  • Special costs (higher, more punitive, often requiring misconduct).

• Awarding costs on a full indemnity basis was viewed as functionally equivalent to awarding special costs, which requires a finding of reprehensible conduct.

The court emphasized that:

• The adjournment was not caused by unavoidable unavailability, but by counsel choosing to prioritize another matter, even after certifying readiness to proceed.

• Nonetheless, no finding of reprehensible behavior had been made by the associate judge, nor could such a finding be supported by the evidence.

• The Supreme Court Scheduling process and the assize system (which requires availability for the full 10-day period) were misunderstood by counsel, but this alone didn’t justify an exceptional cost order.

Relevant Case Law Considered

• Bolin v. Lylick, 2018 BCCA 127: Cited for support of awarding costs thrown away, but did not authorize full indemnity costs.

• West Van Holdings Ltd. v. Economical Mutual Insurance Company, 2019 BCCA 110: Clearly stated that courts in BC cannot award costs not authorized by the Rules, such as full indemnity or solicitor-and-own-client costs.

• Soltani v. Fadaee, 2022 BCSC 2162: Provided guidance on when adjournment-related costs could rise to the level of special costs.

Outcome

The appeal was allowed, and the costs order was substituted:

"Instead of full indemnity costs, the plaintiff was awarded party and party costs, the standard form of costs under the BC rules."

The court reiterated that while the adjournment was inconvenient and poorly handled, it did not meet the threshold for special or punitive cost awards.