Court of Appeal awards ICBC costs thrown away where impending trial adjourned

In reasons for judgment released today, the BC Court of Appeal overturned the order of a Master denying the defendant costs thrown away in circumstances where the plaintiff was successful in obtaining an adjournment of an impending  trial.  In Bolin v. Lylick, 2018 BCCA 127 the Court of Appeal confirmed that "the usual approach" following a late adjournment application is that the opposing party get their costs thrown away:

[2]          Counsel for the defendants opposed the application for an adjournment, and observed that the trial had already been adjourned once from the first date set, November 16, 2015, to allow for Ms. Bolin’s medical treatment. In opposing an adjournment, the defendants emphasized the trial preparation already completed, said they were ready for trial, and stated that a delay would entail further discoveries and a further independent medical examination so as to make available for trial evidence of the plaintiffs current situation.

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[17]       In this case not only did the judge not hear out counsel for the defendants on the matter of costs, he then gave no reason for departing from the approach applied in those cases which I consider illustrate the approach usually brought to bear in such circumstances. While the judge had discretion to take a different path than is commonly taken, I consider that some explanation, however brief, then should have been given so as to allow this court to review the order.

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[19]       In these circumstances, there is no apparent reason to depart from the usual approach to costs in circumstances of a late adjournment; in other words, there is no apparent reason not to relieve the defendants from the prejudice of the late adjournment by an award of costs thrown away. It is to be remembered that even though the judge did not attribute fault to the plaintiff in the adjournment application, in asking for an adjournment the plaintiff was asking for an indulgence from the court that had adverse consequences for the defendants. I would add to the order made for the adjournment a term that the defendants are entitled to their costs of trial preparation thrown away. I would not define the degree of such wasted costs in the circumstances of this case as was done, for example in Dhillon v. Foster, 2004 BCSC 1782, to which we have been referred, and I note further, that what fits within the waste captured by the term “costs thrown away” is properly a matter for the trial court’s determination.

The full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/ca/18/01/2018BCCA0127.htm