Garcia v. Crestbrook Forest Ind. (1994), 45 B.C.A.C. 222 (CA);
72 W.A.C. 222
MLB headnote and full text
David J. Garcia (plaintiff/respondent) v. Crestbrook Forest Industries Ltd. (defendant/appellant)
(CA016172)
Indexed As: Garcia v. Crestbrook Forest Industries Ltd. (No. 2)
British Columbia Court of Appeal
Lambert, Legg and Wood, JJ.A.
June 1, 1994.
Summary:
The plaintiff employee sued his former employer for damages for wrongful dismissal. Following a summary trial under rule 18A, the Chambers judge allowed the action. The employer appealed respecting the period of reasonable notice (11 months).
The British Columbia Court of Appeal, in a decision reported in 39 B.C.A.C. 4; 64 W.A.C. 4, dismissed the appeal.
The British Columbia Court of Appeal, in the following decision, ruled respecting the costs of the appeal.
Practice – Topic 7402
Costs – Solicitor and client costs – General principles – Definition – The British Columbia Court of Appeal held that the special costs which the Court of Appeal may award were the costs that used to be called solicitor and client costs – See paragraph 11.
Practice – Topic 7454
Costs – Solicitor and client costs – Entitlement to – Improper, irresponsible or unconscionable conduct – The British Columbia Court of Appeal held that the single standard for the awarding of special costs by the Court of Appeal was that the conduct in question properly be categorized as “reprehensible”, which encompasses scandalous or outrageous conduct but also milder forms of misconduct deserving of reproof or rebuke – The court gave examples of such conduct – See paragraphs 17, 23 to 25.
Practice – Topic 7454
Costs – Solicitor and client costs – Entitlement to – Improper, irresponsible or unconscionable conduct – An employee was terminated without notice and without cause after 5.5 years – During negotiations over termination payments, the employer did not pay the minimum severance pay required by statute or process his record of employment for unemployment insurance purposes – The trial judge awarded the equivalent of 11 months’ wages, while the employer had offered nine – The employer’s appeal had little merit and was dismissed – The litigation, knowingly to the employer, drained the employee’s resources – The British Columbia Court of Appeal held that the employer’s conduct was reprehensible and deserving reproof in an award of special costs (formerly called solicitor and client) – See paragraphs 18 to 30.
Practice – Topic 8333
Costs – Appeals – Costs of appeal – Jurisdiction – The British Columbia Court of Appeal held that the Court of Appeal may, in awarding party and party costs, award ordinary costs or special costs where appropriate, but that it may not award increased costs in a way comparable to the way those costs can be awarded under s. 7 of Appendix B of the Supreme Court Rules, that is, by awarding costs expressed as a percentage of special costs – See paragraph 10.
Cases Noticed:
Gaudry et al. v. Woodward’s Ltd. (1993), 26 B.C.A.C. 156; 44 W.A.C. 156; 79 B.C.L.R.(2d) 236 (C.A.), refd to. [para. 3].
Foster v. Kockums Cancar Division, Hawker Siddeley Canada Inc. (1993), 32 B.C.A.C. 292; 53 W.A.C. 292; 83 B.C.L.R.(2d) 207 (C.A.), refd to. [para. 3].
Bradshaw Construction Ltd. v. Bank of Nova Scotia (1991), 54 B.C.L.R.(2d) 309 (S.C.), refd to. [para. 6].
Bradshaw Construction Ltd. v. Bank of Nova Scotia (1992), 16 B.C.A.C. 62; 28 W.A.C. 62; 73 B.C.L.R.(2d) 212 (C.A.), refd to. [para. 9].
Dusik v. Newton (1984), 51 B.C.L.R. 217 (S.C.), refd to. [para. 11].
Sussex Investments Ltd. v. Leskovar (1981), 30 B.C.L.R. 372 (C.A.), refd to. [para. 11].
Stiles v. Workers’ Compensation Board (B.C.) (1989), 38 B.C.L.R.(2d) 307 (C.A.), refd to. [para. 12].
Young v. Young et al. (1993), 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161; 84 B.C.L.R.(2d) 1 (S.C.C.), refd to. [para. 13].
Leung v. Leung (1993), 77 B.C.L.R.(2d) 314 (S.C.), refd to. [para. 14].
Fullerton et al. v. Matsqui (District) et al. (1992), 19 B.C.A.C. 284; 34 W.A.C. 284; 74 B.C.L.R.(2d) 311 (C.A.), refd to. [para. 16].
Nance v. British Columbia Electric Railway Co., [1951] A.C. 601; [1951] 2 All E.R. 448 (P.C.), refd to. [para. 22].
R. v. Bridges (1991), 54 B.C.L.R.(2d) 294 (C.A.), refd to. [para. 24].
Everywoman’s Health Centre Society (1988) v. Bridges – see R. v. Bridges.
Gerson et al. v. Gerson (1993), 33 B.C.A.C. 293; 54 W.A.C. 293; 107 D.L.R.(4th) 20 (C.A.), refd to. [para. 24].
G.(M.L.) v. G.(K.L.) – see Gerson et al. v. Gerson.
Statutes Noticed:
Rules of Court (B.C.), Court of Appeal Rules, sect. 29 [para. 4]; sect. 29(2) [para. 10]; Appendix B, sect. 3 [para. 5]; sect. 8 [paras. 5, 10].
Rules of Court (B.C.), Supreme Court Rules, Appendix B, sect. 7 [paras. 7-8, 10].
Counsel:
N.D. McInnes, for the appellant;
B.T. Gibson, for the respondent.
This appeal was heard at Vancouver, British Columbia, on December 2, 1993, before Lambert, Legg and Wood, JJ.A., of the British Columbia Court of Appeal.
The decision of the Court of Appeal was delivered on June 1, 1994, by Lambert, J.A.
