Contradictory Decisions from Appeal & Supreme Court on Interpretation of Court Rules

It is important in a society governed by the rule of law that those laws are interpreted in a consistent manner. It is not open to judges to insert provisions into law, even if it is done for arguably meritorious reasons. Our laws provide judges with discretion in certain matters in order to achieve justice and efficiencies. But that discretion, even when expressly permitted, is not unfettered. In general, judges are permitted to interpret and apply laws but are not allowed to make them.

The Court of Appeal in Evans v. Jensen, 2011 BCCA 279, published yesterday, underscores this core principle. In this appeal, ICBC’s lawyers argued that a trial judge erred by not reading into the Rules an option that did not exist, mainly awarding costs to the defendant from the date of their formal offer. The Rule in question said this:

Cost options
(5) In a proceeding in which an offer to settle has been made, the court may do one or both of the following:
(a) deprive a party, in whole or in part, of costs to which the party would otherwise be entitled in respect of the steps taken in the proceeding after the date of delivery of the offer to settle;
(b) award double costs of all or some of the steps taken in the proceeding after the date of delivery of the offer to settle.

In finding that the Rules did not allow him to make such an order the trial judge said the following:

What a judge cannot do, however, in my respectful opinion, as a result of an offer to settle, is to order [single] costs to a defendant where the offer to settle was in an amount greater than the judgment. While that cost option had existed since the time of the 1890 rules, either as an exercise of the court’s discretion or because it was mandated by the terms of the rule, it is not an option available under Rule 37B. The drafters of Rule 37B(5) have removed that option and presumably determined that the potential deprivation of costs to which a plaintiff would otherwise be awarded is a sufficient incentive for plaintiffs to settle litigation. As noted in Cridge, the Lieutenant Governor in Council has the right to limit the court’s discretion. Accordingly, I hold that pursuant to Rule 37B(5) the court cannot award [single] costs to the defendant but is limited to depriving a party of costs or awarding double costs.

The Court of Appeal, in reasons written by Madam Justice Prowse, unanimously agreed with the trial judge, saying as follows:

In my view, reading the words of Rule 37B(5) in their grammatical and ordinary sense supports the trial judge’s interpretation that it provides for “one or both” of the options set out in Rule 37B(5), but no additional options, including single costs. If the options include single costs, there is no reason they should not include other options. In other words, once this door is opened, there is no principled basis for restricting the trial judge from choosing any option which the trial judge thinks fit in the particular circumstances of the case. To extend the options available in this manner would encourage an individualized approach to costs which is not in keeping with the most obvious and accepted intent of this Rule, namely to promote settlement by providing certainty to the parties as to what to expect if they make, or refuse to accept, an offer to settle.

The Court further stated, with respect to the submissions of the amicus curiae:

I also agree with the amicus that there is no room in 37B(5) for the exercise of inherent jurisdiction to read in an option which is not expressly provided for in that Rule.

And the Court of Appeal reiterated the decision of a five justice division of the Appeal Court from 2008 where the Court stated that even if the operation of a Rule is seen as excessively harsh “it is not for the court to read into it a discretion that was not given by the Lieutenant-Govenor in Council.”

The above seems hard to reconcile with the outcome in the decision of Stockbrugger v. Bigney, 2011 BCSC 785. There Mr. Justice Macaulay was asked to allow a “consent case plan order” to be entered at the Court Registry even though the Supreme Court Civil Rules make no provisions for such an order.

As the judge noted: Rule 5-3(3) requires that the judge or master conducting the case planning conference make a case plan order. Accordingly, if there is no case planning conference there are no grounds for a case planning order – by consent or otherwise.

In ordering that the Registry file the proposed consent case plan order, Mr. Justice Macaulay reasoned:

Even though the Supreme Court Civil Rules do not expressly provide for consent case plan orders, permitting the parties to file a consent case plan order is not prohibited and is entirely consistent with the object of the rules to secure the just, speedy and inexpensive determination of very preceding on its merits.

He went on to add that allowing a consent case planning order to be entered also comports with the principle of “proportionality”, which is now expressly enshrined in the Supreme Court Civil Rules.

In the writer’s respectful opinion, the Court of Appeal has made it clear that such reasoning is not in keeping with the accepted principles of statutory interpretation. Moreover, the order appears to offend what Madam Justice Gropper referred to in Rogalsky v. Regina, 2006 BCSC 975 (at paragraph 21) as the “cardinal rule” of statutory interpretation known as expressio unius est exclusio alterius, or implied exclusion.

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