Sillett v. Diguistini

2020 BCSC 937 Sillett v. Diguistini

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Sillett v. Diguistini, 2020 BCSC 937 Date: 20200623 Docket: M159132 Registry: Vancouver Between: Holly Kate Sillett Plaintiff And Joseph Diguistini and Pioneer Garage Limited Defendants Before: The Honourable Mr. Justice Myers Reasons for Judgment re: Management Fee and Tax Gross-Up Counsel for the Plaintiff: Todd Brown Nick Hopewell Counsel for the Defendants: Michael D. Wilhelmson Erin Haupt Rebecca K. Buchanan Written Submissions: May 29, 2020 Place and Date of Judgment: Vancouver, B.C. June 23, 2020 [1] On March 13, 2019, Ms. Sillett was awarded damages by a jury. She now asks me to order a management fee and, with respect to the award for the cost of future care, a tax gross-up. [2] It was agreed between counsel that the jury would not be asked to deal with taxation for past income loss. That was set out in my jury charge, drafts of which had been fully discussed with counsel before it was finalised. The charge stated: [67] Do not make any adjustments for taxation - that will be done by counsel afterwards. [3] With respect to the cost of future care, Ms. Dionne Sellick prepared a report detailing her opinion regarding the cost of future care, listing one-off items and recurring items. Mr. Robert Carson prepared a report dealing with how to calculate the present value of the future cost of care items and services listed in

Ms. Sellick's report. It had a section explaining the tax gross-up and how the jury could calculate it. My charge stated: [83] As with loss of future income earning capacity any award must be expressed as the present value of the future lost income stream. This is also the subject of a separate report and tables prepared by Mr. Carson. [4] After the jury came in with its verdict, counsel agreed that judgment would not be entered so that they could try to reach an agreement on the taxation amount for the past income loss, prejudgment interest "and those sorts of things". Several weeks later, counsel agreed to an order setting out the amounts awarded by the jury for the various heads of damages. The past income loss was noted to have been adjusted to take into account taxation. The order contained this provision: The issue of tax gross up and management fees is to be determined. [5] I agree with defence counsel's interpretation of this provision. It was not an acknowledgement or agreement that the plaintiff was entitled to those items in an amount to be determined. Rather, the issue of whether a tax gross-up or management fee should be awarded at all, and if so the amounts, was left for determination. [6] Whether a management fee should be awarded is a fact-dependant matter and is not awarded as a matter of course. I agree with the defendants that, absent agreement, the issue

should have been one for the jury. There was no evidence directly led on the issue, it was not argued and it was not something requested to be put in the jury charge. I find it is too late for this to be raised after the verdict. [7] Regarding the tax gross-up, Mr. Carson's report having dealt with the issue, there is no way to know whether the jury took that into account in coming to its award for the cost of future care. Once again, it is too late to raise this issue. "E.M. Myers J."