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Special Costs
Published in the August 2009 issue of Transportation Notes - View Article
Earlier this summer, the Supreme Court of British Columbia released oral reasons for judgment disposing of claims for costs arising out of an interlocutory proceeding in the context of a fatality claim against Mitsubishi and others. The court clearly wanted to send a message to the effect that parties who do not take their discovery obligations sufficiently seriously can expect to pay heavy costs, and pay them forthwith.
The claim arises out of a fatal accident involving a Mitsubishi MU-2B. As part of the discovery process, the plaintiff asked for details of the certification of the aircraft. In particular, she asked for identification of any jurisdictions in which certification had been denied. They received the following response: “The MU-2B-36 and the prior model MU-2 aircraft have been certified in the following nations: Japan, United States of America, Canada and Australia. Certification of the MU-2B-36 and prior MU-2 aircraft has never been refused in any ‘jurisdiction’.”
Through other channels, the plaintiff became aware of the fact that an application for certification had been made in the UK and certification had not been obtained. The Civil Aviation Authority (CAA) file apparently contains documents which indicate that the CAA had numerous questions concerning the flight characteristics of the aircraft. None of this was revealed by the defendants.
The court concluded that the answer given was “facile at one level and deceptive at another”. The CAA was not prepared to certify the aircraft and this “can only be classified as a refusal to certify”. Having come to this conclusion, the judge considered whether he should award special costs. Such costs are appropriate where the conduct of the defendant is considered “reprehensible”, but can also “extend to lesser forms of conduct” which are “sufficiently egregious”. While the conduct of the defendant could not properly be called reprehensible, it was egregious “within the context of this dispute where the flight capacity or characteristics of this aircraft on take-off and climb-out after engine failure . . . has been clearly an issue from the filing of the statement of claim forward”.
In these circumstances, the judge awarded costs set at 80% of solicitor-client costs and ordered that those costs be paid within 21 days. In making the order, the judge pointedly noted that it was designed to ensure that foreign defendants be mindful of the province’s discovery rules whose requirements “will best be brought home to them by ensuring that the costs . . . are payable forthwith”.
Piper v. Mitsubishi Heavy Industries Ltd.
2009 BCSC 1038