ICBC Law

BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Archive for the ‘BC Supreme Court Costs Cases’ Category

BC Court of Appeal – Settlement Paying Pennies on the Dollar Beats Losing Your House

December 6th, 2018

You are badly injured through the alleged negligence of others.  If you win at trial you can get north of $400,000 in damages.  If you lose you will literally lose your house to cover the costs of litigation. When faced with this stark reality a settlement offer that pays less than 1o cents on the dollar may very well be reasonable.  The BC Court of Appeal released reasons for judgment today saying as much.

In today’s case (Deo v. Vancouver) the infant plaintiff suffered serious injuries leaving him partially blind while at school.  He sued for damages and was largely unsuccessful on proving liability at trial.  The Plaintiff’s lawyer valued the claim at over $400,000 but before the liability appeals could be heard a settlement of $35,000 was reached.  The Plaintiff, being an infant, could not legally agree to any settlement and judicial permission was needed.  The BC Court of Appeal noted that if the lawsuit ultimately proved unsuccessful the costs consequences would be so steep that the Plaintiff’s parents would likely need to sell their house.  Appreciating this the risk-based settlement was reasonable and the Court approved it.  In supporting the settlement the BC Court of Appeal provided the following reasons:

[11]         Counsel assesses the quantum of damages for non-pecuniary loss in the range of $100,000 to $140,000 and for loss of future earnings in the range of $300,000 to $350,000. The estimate of an adverse costs award if the appeal is unsuccessful is in excess of $100,000.

[12]         Isaac lives with his parents in a house in East Vancouver. If costs are awarded against him, they would have to sell the house to pay the costs. His father says that he has weighed the prospects of success of the appeal against the risk of losing the home and the impact that would have on Isaac and the rest of the family. He says he has concluded that it is in Isaac’s best interests to accept the settlement.

[13]         The parties have consented to the trial judge approving the solicitor’s account without costs.

[14]         Having read the materials provided, it is our view that the settlement is a prudent one, and is in Isaac’s best interests. As was noted in Lotocky, “it is… artificial and misguided to judge the merits of the appeal in isolation from the financial ramifications that would arise from an unsuccessful appeal”: para. 69. Counsel for Isaac acknowledges the “very real” risk that the appeal on liability will be unsuccessful. In light of the serious financial consequences that would flow from an unsuccessful appeal, we agree with the assessment of counsel and that it is in Isaac’s best interests to accept the settlement.

[15]         The settlement is approved in the terms sought. The appeal and cross appeal are dismissed as abandoned on a without costs basis to any party. The matter is remitted to the Supreme Court to Justice Riley for approval of the solicitor’s account.


BC Court of Appeal Discusses When Special Costs Against Lawyers Personally Should be Ordered

September 19th, 2018

In exceptional circumstances lawyers can be ordered to be personally on the hook for costs when litigation goes awry.  Today the BC Court of Appeal discussed when such orders are warranted and when they are not.

In today’s case (Nuttall v. Krekovich) the Plaintiff was seriously injured in a hit and run accident.  A lawsuit was started suing ICBC as a nominal defendant pursuant to s. 24 of the Insurance (Vehicle) Act.  As the litigation progressed the Plaintiff’s lawyer came to believe that the Defendant may have been the driver and brought an application to add him to the lawsuit.  Shortly after obtaining this order the lawyer realized he was mistaken and discontinued the lawsuit against the Defendant.

The Defendant sought costs against the lawyer personally and the Chambers judge made such an order finding  the lawyers actions were “indefensible and an abuse of process meriting sanction in the form of an order of special costs payable by him personally”.

The lawyer successfully appealed the order with the BC Court of Appeal noting the chambers judge made several errors in ordering special costs against the lawyer.  In discussing the scope of special costs being ordered against a lawyer personally BC’s highest court provided the following reasons:

[25]         It is my view that the chambers judge made several errors that warrant intervention by this Court.

[26]         First, special costs have a punitive or deterrent element and are only appropriate where the conduct in issue is deserving of punishment or rebuke. This well-known principle stems from numerous cases, most recently enunciated in J.P. v. British Columbia (Children and Family Development), 2018 BCCA 325 at para. 28. The chambers judge erred in principle by failing to consider the cautious approach to an award of special costs against a lawyer personally, as well as the kind of reprehensible conduct that would justify such an award, mandated by the Supreme Court of Canada in Young v. Young, [1993] 4 S.C.R. 3 and more recently in Quebec (Director of Criminal and Penal Prosecutions) v. Jodoin, 2017 SCC 26.

[27]         In Young the court directed judges to be “extremely cautious” in awarding costs personally against lawyers given their duties to guard confidentiality of instructions and to bring forward with courage even unpopular causes:

… A lawyer should not be placed in a situation where his or her fear of an adverse order of costs may conflict with these fundamental duties or his or her calling.

[28]         In Jodoin, the court confirmed that the threshold for exercising the power to award costs against lawyers is high, such that there must be a finding of reprehensible conduct by the lawyer. Reprehensible conduct “represents a marked and unacceptable departure from the standard of reasonable conduct expected of a player in the judicial system” (at para. 27). Mr. Justice Gascon, for the majority, described the kind of conduct that would justify such an order at para. 29:

[29]      In my opinion, therefore, an award of costs against a lawyer personally can be justified only on an exceptional basis where the lawyer’s acts have seriously undermined the authority of the courts or seriously interfered with the administration of justice. This high threshold is met where a court has before it an unfounded, frivolous, dilatory or vexatious proceeding that denotes a serious abuse of the judicial system by the lawyer, or dishonest or malicious misconduct on his or her part, that is deliberate…

[29]         Consistent with these decisions, this Court has long held that such orders should be made only in “very special circumstances”, and not on the basis of mistake, error in judgment or even negligence: see Hannigan v. Ikon Office Solutions Inc. (1998), 61 B.C.L.R. (3d) 270 (C.A.); Pierce v. Baynham, 2015 BCCA 188 at para. 41.

[30]         Second, the chambers judge erred in concluding that Mr. Krekovic’s failure to disclose the entire circumstances of his investigation was in itself sufficient to justify an order for special costs. A special costs order is not justified only because counsel fails to disclose evidence that ultimately proves to be material or incorrect: see Pierce at para. 43. The chambers judge made no finding of dishonesty, accepting that Mr. Krekovic’s motivation to bring the application was “in pursuance of his duty to his client”. Given that, his failure to disclose more about his investigation does not constitute reprehensible conduct sufficient to justify an award of special costs. This is particularly so in the context of the evidence in the application that Mr. Krekovic clearly informed the court that his own investigation had not yielded any reliable information and he was relying only on information provided to him from another lawyer, the basis for which had not been disclosed.

[31]         Moreover, I cannot agree that disclosure of further information would necessarily have yielded a different outcome in the application. The chambers judge placed considerable importance on “the discrepancy between the date of birth that he had given for the Mr. Dhillon identified by Mr. Folick, and the date of birth of the Mr. Dhillon whom his investigation had previously identified as a potential defendant”. In fact, there was no discrepancy in the most recent date of birth provided by the investigator, Mr. Loncaric, and the date of birth later provided by Mr. Folick. The only discrepancy was with the earlier information Mr. Loncaric had given, which had not been confirmed. Had the application judge been informed of these or other details – such as the inconclusive information pointing to another Mr. Dhillon – the order may have nonetheless been granted. It is also important, in my view, that Mr. Dhillon did not attend himself to oppose the application. Instead, the application was opposed only by ICBC, who put the issue of the sufficiency of the information squarely before the court.

[32]         Additionally, Mr. Krekovic’s conduct after the order was granted demonstrates an effort to be prudent. He did not enter the order or serve the amended notice of civil claim without making further inquiries of Mr. Folick’s office about the reliability of the information, and as soon as he learned that the information was in fact incorrect, he advised Mr. Dhillon’s’ counsel that the action would be discontinued against him.

[33]         In my opinion, Mr. Krekovic’s conduct was far from being characterized as reprehensible.

[34]         Finally, the chambers judge referred to Rule 14-1(33) as allowing for an order for special costs. Rule 14-1(33) gives the court discretion to make various orders if it considers that a party’s lawyer “has caused costs to be incurred without reasonable cause, or has caused costs to be wasted through delay, neglect or some other fault”. One of those orders is that the lawyer “be personally liable for all or part of any costs that his or her client has been ordered to pay to another party”.

[35]         This rule, which does not distinguish between party and party costs and special costs, has expanded the scope of conduct which might support a costs order against a lawyer. As explained in Nazmdeh v. Spraggs, 2010 BCCA 131, there is no requirement for “serious misconduct” to justify an order that a lawyer pay party and party costs, but it is still necessary to find reprehensible conduct on the part of the lawyer to justify an order for special costs. Moreover, the lower standard mandated by Rule 14-1(33) must also be exercised with restraint, as the Court reasoned at paras. 103‒104:

[103]    The power to make an order for costs against a lawyer personally is discretionary. As the plain meaning of the Rule and the case law indicate, the power can be exercised on the judge’s own volition, at the instigation of the client, or at the instigation of the opposing party. However, while the discretion is broad, it is, as it has always been, a power to be exercised with restraint. All cases are consistent in holding that the power, whatever its source, is to be used sparingly and only in rare or exceptional cases.

[104]    The restraint required in the exercise of the court’s discretion is not to be confused with the standard of conduct which may support its use. Care and restraint are called for because whether the unsuccessful party or his lawyer caused the costs to be wasted may not always be clear, and lawyer and client privilege is always deserving of a high degree of protection.

[36]         In conclusion, it is my view that Mr. Krekovic’s conduct in making the application to add Mr. Dhillon as a defendant did not approach the kind of reprehensible conduct required to justify an order for special costs against him as counsel.

[37]         I would allow the appeal and set aside the order of the chambers judge that Mr. Krekovic personally pay the special costs of Mr. Dhillon. I would also award costs to the appellant of this appeal and for the application for special costs in the court below.


Plaintiff Ordered to Pay Double Costs After Jury Dismisses Injury Claim

September 14th, 2018

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, ordering a Plaintiff to pay double costs to a Defendant after a jury dismissed her injury claim.

In the recent case (Brar v. Ismail) the Plaintiff alleged injury following a collision and sued for damages.   Prior to trial the Defendants offered to settle for $50,000.  A further offer of $65,000 was tabled.  Neither side compromised and the Plaintiff proceeded to trial where damages of over $500,000 were sought.  The Defendants attacked the Plaintiff’s credibility and introduced surveillance evidence which the court called “compelling”.

The Jury ultimately dismissed the claim.  In ordering that the Defendants were entitled to pre offer costs and post offer double costs Mr. Justice Myers provided the following reasons:

[23]     The issue of whether an offer to settle ought reasonably to have been accepted is determined by the factors existing at the time of the offer and not with the hindsight of a judgment or jury verdict.

[24]     The main point this question hinges on is whether the credibility issues were obvious and significant enough to the plaintiff so that she ought to have accepted one of the offers.

[25]     From at least the time the video surveillance was delivered, it was obvious that the plaintiff’s credibility would be front and center.  There were inconsistencies between what it showed and what she relayed to her experts.  It was also obvious these inconsistencies would have a significant impact on her case.  I do not agree with the plaintiff that what was seen in the video was not far off what she had had told her experts or said in evidence.  Often video surveillance is not compelling; here it was.

[26]     Moreover, as argued by the defendants, the plaintiff also had further credibility difficulties that ought to have been apparent to her counsel:

·        The plaintiff’s evidence was that she hit her head in the accident and had immediate dizziness and nausea including vomiting at the accident scene; however, these complaints were not documented in her GP’s records during her initial visit, which was only hours after the accident.  Her GP testified that he would have made a note of these complaints if they were made to him.

·        The plaintiff’s evidence that she was disoriented and vomited at the accident scene was contradicted by Mr. Ismail’s evidence and that of his brother;

·        In her discovery, the plaintiff said she had not done any form of work, whether paid or voluntary.  She had also stated during her examination for discovery that she never helped her husband in his business (even though she was president and 100% shareholder).  However, at the trial she acknowledged she had in fact done work for her husband’s business since the accident.  Further the surveillance video showed the plaintiff working at an elections voting station.

·        At examination for discovery the plaintiff stated she did not have any other sources of income other than what she received from her employer, Swissport.  She also said she did not own any other properties other than her primary residence.  However, her income tax records showed significant amounts of rental income, and she later admitted at trial that she and her husband received rental income from a property she was on title for.  Her reported rental income was more than she had ever earned from Swissport before the accident.

[37]     I said I would return to the timing of the second offer  There was nothing to prevent the defendants from providing the surveillance far sooner, given its importance; as noted above, it was completed in January 2018.  The fact that it was disclosed in compliance with the rules does not mean that its timing cannot be a consideration with respect to the discretion to award double costs.  As well the $65,000 offer, which was not delivered until five days before trial, could have been delivered sooner.  This would have given the plaintiff more time to consider her position, without prejudicing the defendants.  Therefore, in my view, the defendants should receive ordinary costs up to and including the first five days of trial and double costs after that.


Plaintiff Must “Live With The Consequences” For Failing to Beat Formal Settlement Offer at Trial

August 17th, 2018

Failing to beat a defence formal settlement offer at trial can bring serious financial consequences.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating exactly this.

In today’s case (Gill v. McChesney) the Plaintiff was injured in a vehicle collision and sued for damages.  Prior to trial the Defendant made two formal settlement offers, the second of which was $208,750.  The Plaintiff rejected this and proceeded to trial where she sought “damages in excess of $1 million“.  The trial result was not nearly so favourable with damages being assessed at $87,250.

The Defendant sought to strip the Plaintiff of all of her costs post their formal settlement offer.  This would result in a swing in the tens of thousands of dollars.  The Court granted this request noting that while it may substantially diminish the Plaintiff’s recoverable damages she must “live with the consequences” of running the trial.  In reaching this decision Mr. Justice Abrioux provided the following reasons:

[54]          When I apply the legal framework to which I have referred and consider all the relevant factors, the real issue in my view is whether the plaintiff should pay the defendants’ costs after August 18, 2015, or whether the parties should bear their respective costs from that date onwards.

[55]         While not entirely analogous, this case does have certain similarities to those in Dennis, where the finder of fact concluded the plaintiff was untruthful and/or misled experts, as opposed to the situation where the plaintiff cannot be expected to know in advance how the court might assess his/her credibility in the witness box.

[56]         Here, the plaintiff did not accept a reasonable offer and the award at trial was significantly less than either the First or the Second Offers.

[57]         As was stated in Luckett v. Chahal, 2017 BCSC 1983 at para. 47:

[47]           But what happened here is that the plaintiff, well aware of the significant credibility issues at stake, chose to gamble or “take his chances” by going to trial and lost. He should live with the consequences which Rule 9-1(4) seeks to avoid: Wafler v. Trinh, 2014 BCCA 95 at para. 81.

[58]         In my view, that is what occurred in this case.

[59]         Accordingly, the plaintiff is entitled to her costs and disbursements at Scale B to August 18, 2015, and the defendants to their costs and disbursements at Scale B thereafter.


Court Finds “After the Event” Insurance a Factor To Consider When Awarding Post Trial Costs

July 9th, 2018

In what, to my knowledge, is the first BC injury case commenting on the weight a court should place on “After the Event” insurance when awarding costs post trial, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing this.

In the recent case (Clubine v. Paniagua) the Plaintiff was injured in a crash and sued for damages.  Prior to trial the Defendant offered to resolve the claim for a total of $94,848.32 plus costs and disbursements.  The Plaintiff rejected this offer and proceeded to trial where he was awarded a total of $77,224.32 in damages.  The Defendant asked for costs of the trial arguing their offer should have been accepted.

The Plaintiff had ATE insurance which covers some of these adverse costs consequences.   The Court was asked to take this factor into account in stripping the plaintiff post-offer costs and making the Plaintiff pay the Defendant’s trial costs.  In finding this was an appropriate factor to consider Madam Justice Watchuk provided the following reasons:

[27]         On the costs application it was disclosed that the plaintiff purchased adverse cost insurance known as “After-the-Event” (“ATE”) insurance prior to trial.  In submissions the plaintiff explained that the ATE insurance would cover the defendant’s disbursements and costs from the date of the offer if costs were awarded against the plaintiff, and would also pay for the plaintiff’s disbursements incurred but not awarded from the date of the offer.  It will not pay for the plaintiff’s costs following the date of the offer. 

[28]         The defendant submits that the ATE insurance effectively undermines the intent of the offer to settle rule.  It allows a plaintiff to avoid the punitive costs consequences of the rule, ignore reasonable offers to settle, and with impunity take their chance at trial.  The winnowing function of the costs rules is obviated by ATE insurance; doubtful cases can proceed through litigation without risk of adverse costs consequences.  I conclude in this case that this insurance had such an effect. 

[29]         The ATE insurance in this case strongly weighs in favour of the defendant’s costs application. ..

[30]         The defendant made reasonable efforts to settle this matter.  The plaintiff’s failure to accept the reasonable offer to settle should have costs consequences.  The ATE insurance held by the plaintiff is a factor that further weighs against costs following the event in these circumstances. 

[31]         The offer was open to the eve of trial, July 22, 2016.  In these circumstances the plaintiff is entitled to only his pre-trial costs of $6,500 plus disbursements.  The defendant’s application is granted and she is entitled to the costs and disbursements of the trial. 


“Marginal Difference” Between Trial Result and ICBC Settlement Offer Results in Full Costs to Plaintiff

May 2nd, 2018

Reasons for judgement were published today by the BC Supreme Court, Victoria Registry, awarding a Plaintiff full trial costs after the Plaintiff failed to beat an ICBC settlement offer by a “marginal difference“.

In today’s case (Goguen v. Maddalena) the Plaintiff was injured in a collision the Defendant accepted fault for.  The Plaintiff proceeded to trial where he was awarded total damages of $174,360.84.

Prior to trial ICBC made a formal offer to settle for $175,000.  The Defendant argued that the Plaintiff should be deprived of some of his post offer costs for failing to beat the settlement attempt.  In finding that a “marginal difference” does not warrant such an outcome Madam Justice Forth provided the following reasons:

[39]         The plaintiff submits that the Defendant’s Offer was greater than the judgment amount by only $639.16, or approximately 0.5%. He argues that this marginal difference should afford little weight. In support, the plaintiff cites Saopaseuth v. Phavongkham, 2015 BCSC 45 at para. 74, in which Bernard J. noted that an award 2% greater than an offer to settle “suggests that little weight should be given to this factor”. Furthermore, in Zhao v. Yu, 2015 BCSC 2342 at para. 11, Baker J. held that an offer that exceeded an award by $1,800 was “of little significance in arriving at a decision about costs”.

[40]         The defendant submits that the Defendant’s Offer was only with respect to the plaintiff’s tort claim and that acceptance of the offer would have allowed the plaintiff to collect Part 7 ICBC benefits. Therefore, the Defendant’s Offer exceeds the trial award by a larger margin that what appears on its face.

[41]         The plaintiff, in reply, submits that he understood that any settlement offers made by the defendant were full settlements of both the tort claim and Part 7 claims against ICBC, and that at no time did defence counsel convey that Part 7 benefits would still be available in the event that the Defendant’s Offer was accepted.

[42]         With respect to Part 7 benefits, I note the first page of the Defendant’s Offer reads in part:

The Settlement Payment:

(a)     is offered after taking into account Part 7 benefits paid or payable, pursuant to section 25 of the Insurance (Motor Vehicle) Act, R.S.B.C. 1996, c. 231 (in respect of policies in force before June 1, 2007) and/or pursuant to section 83 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231 (in respect of policies in force on or after June 1, 2007);

[43]         Neither counsel have provided submissions on the implications of this settlement term or the quantum of Part 7 benefits that would have likely been available to the plaintiff. As a result, it would be speculative of me to attach significant weight to the submissions on these points.

[44]         Considering the marginal difference between the Defendant’s Offer and the ultimate award, this factor is of little significance in my determination…

[52]         Taken together, the factors pursuant to subrule 9-1(6) weigh in favor of the plaintiff. As a result, I exercise my discretion to award the plaintiff costs pursuant to R 9-1(5)(c). The plaintiff is entitled to his costs at Scale B.


Plaintiff Ordered to Pay Double Costs After Failed Parking Lot Collision Injury Claim

March 8th, 2018

Reasons for judgement were released this week by the BC Supreme Court, Chilliwack Registry, ordering a Plaintiff to pay double costs after having a personal injury lawsuit dismissed.

In the recent case (Sandhu v. Raveendran) the Plaintiff was a passenger in a vehicle driven by her husband which was involved in a parking lot collision with another vehicle with the Court noting “the contact between two vehicles was relatively superficial”The lawsuit was ultimately dismissed with Mr. Justice Brown ruling “ In this case, I find a lack of convincing evidence that this minor, slow-moving parking lot accident caused the plaintiff any compensable injury. Accordingly, the plaintiff’s claims for damages are dismissed with costs.”

Prior to trial ICBC made a formal settlement offer of $5,000.  ICBC asked for double costs.  The court agreed noting the offer ought to have been accepted.  In granting the request for double costs Mr. Justice Brown provided the following reasons:

[4]             The defendant submitted, reasonably, that considering the very minor nature of the collision, the plaintiff should have accepted the offer. Counsel for the defendants correctly pointed out no complicated issues required the plaintiff’s consideration before accepting the offer. There is no claim advanced for loss of past or future income and no future care costs claimed. Considering the very minor slow-motion contact between the vehicles, it cannot be reasonably maintained that there is any reasonable basis for such claims.

..

[7]             I find the defendants entitled to double costs for the period between the date of the offer to settle, March 1, 2017, and the commencement of trial, on March 7, 2017. Considering all the circumstances, the offer ought reasonably to have been accepted by the plaintiff.


ICBC Ordered to Pay $250 for “Misguided” Refusal to Pay $15 Fee

March 1st, 2018

When people hire a lawyer in British Columbia a $15 ‘trust administration fee’ must be paid to the Law Society of BC.  Basically a mandatory tax.

When a plaintiff hires a lawyer to resolve a dispute with ICBC this fee needs to be paid.  If the Plaintiff is a successful litigant ICBC needs to indemnify this fee as a disbursement.  They don’t like to do so.  Today, reasons for judgement were published by the BC Supreme Court, Vancouver Registry, (Garayt v. Deneumoustier) with some harsh words for ICBC’s routine ‘misguided’ refusal to accept this disbursement.  In ordering the disbursement paid along with a $250 award in further costs Registrar Cameron provided the following reasons:

[6]            I agree with these submissions and would add that on numerous occasions on assessments that I have presided over I have advised counsel for the Insurance Corporation of British Columbia, who are retained to defend these motor vehicle related personal injury claims under our provincial automobile insurance program, that unless there is an issue as to whether or not the Plaintiff’s counsel has received a deposit into trust in respect of resolution of the litigation, there is absolutely no justification to put the trust administration fee into issue.

[7]            I have said to counsel, who come with instructions to oppose the TAF disbursement that those instructions are simply misguided and the matter ought not to be raised on an assessment unless there is an issue about the deposit being made. There is no such issue in this case.

[8]            I have jurisdiction pursuant to Supreme Court Rule 14-1(14) to award costs arising from an improper act or omission. The applicable Rule reads as follows:

Costs arising from improper act or omission

(14)   If anything is done or omitted improperly or unnecessarily, by or on behalf of a party, the court or a registrar may order

(a)  that any costs arising from or associated with any matter related to the act or omission not be allowed to the party, or

(b) that the party pay the costs incurred by any other party by reason of the act or omission.

[9]            In this case the Plaintiff was put to unnecessary cost to address this objection to the TAF and I am satisfied that it is appropriate pursuant to Rule 14-1(14)(b) to allow an additional amount for costs in recognition of the failure of the Insurance Corporation of British Columbia to abide by the very clear case law not to make TAF an issue unless there is a proper basis for doing so.

[10]        Finding that there was no proper basis in this case and that the concession was only made this morning, I allow the Plaintiff an additional $250 in costs.


ICBC’s Inconsistent Pleadings Following a Collision “Reprehensible”

July 26th, 2017

Reasons for judgement were published this week by the BC Supreme Court, Vernon Registry, finding that ICBC taking inconsistent positions in lawsuits for fault after a collision is ‘reprehensible’ and awarded special costs as a deterrent.

In the recent case (Glover v. Leakey) the Defendant was involved in a crash and injured two passengers.  One sued and fault was admitted and ultimately settlement reached.  The second sued but fault was denied.  In the midst of a jury trial the Plaintiff discovered the inconsistent pleadings and asked for a finding of liability.

Due to a misunderstanding the matter proceeded to verdict and the jury found the Defendant was not negligent.  Before the order was entered the Court considered the matter and found that the liability denial was an abuse of process, stripped the defence and granted liability in favour of the plaintiff.

This week the Court went further and ordered special costs.  In findings this appropriate Madam Justice Gropper provided the following reasons:

[42]         I found that the inconsistent pleading by the defendant was an abuse of process because the principles such as judicial economy, consistency, finality and the integrity of the administration of justice were violated. The court cannot condone such conduct.

[43]         Abuse of process can be a basis for special costs. I find that in this case, the conduct of the defendant is of the type from which the court wants to disassociate itself, referring to Fullerton.

[44]         The defendant’s arguments about the merits of its position on the application and that special costs should only be for the application only, in my view, address the circumstances too narrowly. The plaintiff only discovered the inconsistent pleadings days as the jury trial was about to proceed; it was scheduled for 12 days; the jury panel had been summonsed; witnesses were on their way to or in Vernon to give evidence; expert witnesses were also arranged to be examined by video or in person; and the defendant’s counsel had threatened to apply for a mistrial if the inconsistent pleadings were raised before the trial judge or the jury. The application was made while the jury trial was underway. 

[45]         The repercussions of the abuse of process were wide spread and of significant expense to the plaintiff, who had marshalled all of her evidence. The defendant’s narrow approach fails to recognize that his conduct was not confined to the hearing of the application only; it went well beyond that.

[46]         Referring to the principles distilled in Westsea, I am satisfied that in awarding special costs in these unique circumstances meets the test of restraint but addresses the full impact of the defendant’s conduct; there are exceptional circumstances that justify such an order; the inconsistent positions on liability as between this action and the Yeomans’ action is reprehensible in and of itself, and amounts to an abuse of process; and the award of special costs in this action cannot be characterized as a “bonus” or further compensation for the plaintiff’s success on the application. 

[47]         The plaintiff is entitled to special costs arising from my finding that the conduct of the defendant was an abuse of process, including the costs of preparation and attendance at trial, as well as special cost of this application. The assessment of special costs is postponed until the defendant has exhausted all avenues of appeal.


“It is Unusual For a Trial Judge to Award Costs to an Unsuccessful Plaintiff”

July 21st, 2017

Interesting reasons for judgement were released today by the BC Court of Appeal upholding a trial judges award of costs in favour of a plaintiff who had their lawsuit dismissed.

In today’s case (Tisalona v. Easton) the Plaintiff sued for damages as a result of injuries sustained in two collisions.  The Plaintiff was awarded damages for the first crash though less than what she requested and also less than the Defendant’s pre trial offer to settle.  The claim for damages from the second collision was dismissed.  Despite this the Court awarded the Plaintiff costs for both actions which were tried together.  In upholding this result the BC Court of Appeal provided the following reasons:

[75]         In the case of the 2011 action, the only issue at trial was whether the 2011 Accident had aggravated or prolonged the effects of the 2008 Accident. The trial judge concluded that it had not, but that it had been reasonable to deal with the two accidents together.

[76]         The trial judge went on to estimate that approximately one hour of trial time was devoted to evidence concerning the second accident.  None of the expert reports had addressed the 2011 Accident to any extent.

[77]         It is unusual for a trial judge to award costs to an unsuccessful plaintiff. Here the principal considerations were the de minimus nature of the additional time required to deal with the 2011 action at trial and the trial judge’s conclusion that it had been reasonable to join this claim with the more substantial action in relation to the 2008 Accident.

[78]         In my view these considerations are not arbitrary, but rather were connected to the case before the trial judge. They fall within the broad discretion afforded to trial judges following the elimination of the qualification “for good cause” from our rules. Accordingly, I would not give effect to this ground of appeal.