Substantial success and costs on civil appeals

Doucette v. McInnes, 2012 BCCA 235 deals with the issue of substantial success and costs in the Court of Appeal. While arising in British Columbia and so governed by that Province's own rules, the decision is of broader application:



[18] Section 23 of the Court of Appeal Act, R.S.B.C. 1996, c. 77, provides that the party who is successful on appeal is entitled to costs of the appeal, including the costs of all applications made in the appeal, "unless the court or a justice otherwise orders".



[19] Accordingly, the current general rule in this Court is that costs follow the event and will be awarded to the party who has enjoyed "substantial success". Where success is genuinely divided, each party will bear its own costs (Mirza v. Mirza, 2007 BCCA 106 (CanLII), 2007 BCCA 106; Stein v. Stein, 2007 BCCA 187 (CanLII), 2007 BCCA 187; Olney v. Rainville, 2010 BCCA 155 (CanLII), 2010 BCCA 155).



[20] It was not always this Court's practice to simply award costs to the substantially successful party. In years gone by, it was the prevailing practice when success was divided to "construe 'the event' distributively". The Court would determine the percentage of success each party achieved, apportion costs according to that percentage, and set off the parties' costs one against the other (McLeod Engines Limited v. Canadian Atlas Diesel Engines Company Limited (No. 2) (1951), 1 W.W.R. (N.S.) 803 (B.C.C.A.)).



[21] Today, authority to construe the event distributively is found in Rule 65 of the Court of Appeal Rules, BC Reg 297/2001, which provides:



65 The court or a justice may award costs that relate to some particular issue or part of the proceeding or may award costs except insofar as they relate to some particular issue or part of the proceeding. [Emphasis added.]



[22] None of the parties referred to Rule 65 in their submissions, understandably perhaps, because there seems to be little or no jurisprudence referring to it. Nevertheless, there are cases where this Court has applied the principle contained therein. For example, in Cohen v. Cohen, 15 R.F.L. (4th) 84, [1995] B.C.J. No. 1370 (QL) (C.A.), the appellant argued that she had been successful on the "real issue of substance in the case" and was entitled to full costs. The respondent claimed divided success on all of the issues. The Court said at paras. 3 and 4 (QL):



[3] The respondent's version of the order would tend to support his contention that the proper measure of divided success results in an order awarding the appellant only 25 percent of her costs. On the other hand, the appellant's version would tend to assist her argument that the real issue of substance in the case was reapportionment and since she succeeded in that regard she should recover full costs.



[4] There is something to respondent's counsel's argument that there was divided success, however, I disagree with his approach in reflecting that division in costs by counting up the number of issues raised by the appellant and making the costs directly proportional to the ratio of success on those issues. In my view, reapportionment was much the largest issue in the case and occupied most of the time. The appellant was successful in her claim for reapportionment. Many of the other issues were, as appellant's counsel submits, different approaches to achieve the same result. I would award the appellant 75 percent of her costs.



See also Strata Plan LMS 3851 v. Homer Street Development, 2010 BCCA 150.



[23] Many different paths are open to the Court in determining how to exercise its discretion in awarding costs.



[24] The appellants consider this appeal to have involved two discrete issues. They urge this Court to weigh their relative importance in the outcome of the appeal. Although we would not articulate the argument in the same way, we tend to agree with the respondents that this appeal does not lend itself well to compartmentalization and is properly characterized as one interrelated whole.



[25] This Court held that the trial judge erred in determining that the GICs formed part of Mrs. Doucette's estate; this was one of two main issues on appeal. In accordance with Price v. Lypchuk Estate (BC CA), (1987), 11 B.C.L.R. (2d) 371 (C.A.), the Court considered the fact that Mrs. Doucette gifted the GICs to her children during her lifetime and weighed those gifts in the WVA analysis, which was the second of two main issues on appeal. Thus, the disputed GICs played an integral role in resolving the appeal in its entirety.



[26] At the heart of this litigation was the question of whether Mrs. Doucette's Will adequately provided for the proper maintenance and support of her children. The trial judge concluded that it had not and, in accordance with s. 2 of the WVA, ordered provisions he thought adequate, just, and equitable in the circumstances. On appeal, this Court essentially agreed with the trial judge's conclusion that Mrs. Doucette did not justly and equitably provide for all of her children. The result on appeal approximates the apportionment the trial judge thought fair and equitable.



[27] In our view, then, while the appellants achieved superficial success in winning on the issue of the ownership of the GICs, the overall outcome of the trial remained largely unchanged on appeal. This Court and the trial judge took different routes to reach substantially the same result.