PKMB v DHL 2018 BCSC 1039 dealt with the apportionment of court costs where both the plaintiff and the defendant achieved some success.
Rule 14 –1 ( 15) permits the court to award costs:
The court may award costs
- of a proceeding
- that relate to some particular application, step or matter in or related to the proceeding, or
- except so far as they relate to some particular application, step or matter in or related to the proceeding
and in awarding those costs the court may fix the amount of costs, including the amount of disbursements.
In Sutherland v Canada AG 2008 BCCA 27 at para. 26, the Court of Appeal held at paragraph 31 to the test for apportionment of costs in of the predecessor rule was:
- the party seeking apportionment must establish that there are separate in discrete issues upon which the ultimately unsuccessful party succeeded at trial
- there must be a basis in which the trial judge can identify the time attributable to the trial of these separate issues;
- it must be shown that apportionment would affect a just result.
In determining how to apportion costs the two approaches were explained in Waterhouse v. Fedor
( 1987) 13 BCLR (2d) 186 at 190
The court agreed that the two methods may be used in determining the degree of success. One method involves the judge assessing a percentage figure to the relative success of the parties. The other method involves determining the number of days spent in trial on unsuccessful issues in proportion to the time spent unsuccessful issues. Either way, the relative success of the parties is determined in each party is entitled to that portion of his own costs, which are then set off against the other, and the difference, if any, is paid to the party in whose favor the difference lies.
The apportioning of caution not be a part of regular litigation and should be confined to relatively rare cases: Lewis v. Lehigh Northwest Cement limited 2009 BC CA 424 at paragraph 36
