A Vancouver cook who was beaten up by police officers has lost an appeal over legal fees. On August 16, the B.C. Court of Appeal upheld the City of Vancouver's argument that it shouldn't be liable for the $8,400 in legal costs Todd Baiden paid a lawyer to appear before the Workers' Compensation Appeal Tribunal.

B.C.'s highest court also dismissed Baiden's cross-appeal that B.C. Supreme Court justice Eric Chamberlist erred in awarding legal costs to Vancouver police officers, which were set off against Baiden's legal costs.

In May 2009, Baiden was awarded $94,190.26 plus interest in damages after being attacked by six officers in 2002. At the time, Baiden was sleeping on the counter of a downtown café where he worked. The police mistook him for a burglar, broke his nose, and caused him to suffer a ruptured spleen, which required surgery.

At the centre of the appeal was the police officers' bid to have the action barred because Baiden's injuries “arose out of and in the course of employment”, according to the B.C. Court of Appeal ruling.

The trial was adjourned in 2006 while the police defendants sought a ruling from the Workers' Compensation Appeal Tribunal that, because Baiden's injuries occurred at work, he could not sue anyone for damages. In B.C., employers pay premiums in return for not being sued for workplace injuries.

Baiden's lawyer, Cameron Ward, retained lawyer Vahan Ishkanian, who had expertise in this area. Ishkanian successfully argued before the tribunal that Baiden's injuries did not arise out of his employment, which meant that the matter could continue to be heard in B.C. Supreme Court.

Chamberlist ruled that Baiden could recover Ishkanian's $8,400 fee from the City of Vancouver. However, the B.C. Court of Appeal overturned that decision, saying that Chamberlist “misapprehended the nature of the differences” between the tribunal's procedures and those of the B.C. Supreme Court.

“While those provisions are somewhat different from the practice in the courts, I am not persuaded those distinctions present any significant challenge to litigation counsel who typically practice in the Supreme Court,” Justice Kathryn Neilson wrote in a decision affirmed by justices David Frankel and Daphne Smith. Therefore, the panel ruled, there was not “a sufficient evidentiary basis for the trial judge's conclusion that counsel lacked the requisite skills to deal with the matter himself”.

Moreover, the B.C. Court of Appeal stated, outsourcing legal work during litigation and then trying to recover fees incurred by it “undermines” the policy around assessing costs.

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