Double Costs Ordered After Baseball Brawl Lawsuit Dismissed
Earlier this year the BC Supreme Court dismissed a lawsuit following a fight between two adults at a Pee Wee baseball game. ¬†Prior to trial the Defendant made several fairly modest settlement offers, one of which was a formal offer giving the Court the discretion to award double costs. ¬†In finding it was unreasonable for the Plaintiff to reject the offer and proceed to trial Madam Justice Watchuk (Charland v. Cloverdale Minor Baseball Association) provided the following reasons ordering the Defendant to pay double costs:
¬†¬†¬†¬†¬†¬†¬†¬†¬†Mr.¬†Wheeler submits that the offers were offers which ought reasonably to have been accepted.¬† There is now general agreement on the law that, ‚Äúin determining whether the offer to settle ought reasonably have been accepted the court does not consider the final result‚Ä¶¬† The reasonableness of a decision not to accept an offer must be assessed ‚Ä¶ [by] the circumstances existing when the offer was open to acceptance:‚ÄĚ [Ward¬†at para.¬†36].¬†
¬†¬†¬†¬†¬†¬†¬†¬†¬†The first offer of $3000, although not a formal offer under the¬†Rules, was made on March¬†13, 2012.¬† It canvassed the minor injuries set out in Mr.¬†Charland‚Äôs records, and noted that there was not the required supporting letter to substantiate the amount of an offer which had been made by Mr.¬†Charland.
¬†¬†¬†¬†¬†¬†¬†¬†¬†On June¬†8, 2012, a formal offer to settle in the amount of $5000 was served on counsel for Mr.¬†Charland.¬† It was open until five minutes after the commencement of the trial.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Discoveries of Mr.¬†Charland were held in late July¬†2012.¬† On August¬†2, 2012, counsel for Mr.¬†Wheeler wrote to plaintiff‚Äôs counsel expressing reasons why Mr.¬†Charland‚Äôs case was problematic.¬† Those reasons, the credibility of Mr.¬†Charland and the nature and extent of his injuries, were later the subject of findings made at the trial which supported the position of Mr.¬†Wheeler.
¬†¬†¬†¬†¬†¬†¬†¬†¬†At that time, previous offers were retracted and a ‚Äúnuisance offer‚ÄĚ of $250 was formally made.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Mr.¬†Wheeler submits that the fact that the final offer was reduced significantly following discoveries should have no effect on the determination of whether double costs are appropriate in this case.¬† I agree.
¬†¬†¬†¬†¬†¬†¬†¬†¬†It was incumbent on Mr.¬†Charland to ‚Äúmake a careful assessment of the strength or lack thereof of [his] case at the commencement and throughout the course of the litigation‚ÄĚ [Hartshorne¬†at para.¬†25].¬† Mr.¬†Charland had knowledge, particularly after his Discovery, of the evidentiary problems in his case.¬† He chose to proceed to trial despite knowledge of those problems.¬† In light of that knowledge at the time the $5000 offer was made, and in light of the heightened knowledge at the time the nominal offer of $250 was made, his decision not to accept the offers was not reasonable.
¬†¬†¬†¬†¬†¬†¬†¬†¬†As in¬†Riley, Mr.¬†Charland ought reasonably to have anticipated that his claim would be dismissed at trial.
¬†¬†¬†¬†¬†¬†¬†¬†¬†With regard to the other factors listed in Rule¬†9-1(6), the relationship between the terms of settlement offered and the final judgment of the court may be considered by the court.¬† The second and final offers were more favourable to Mr.¬†Charland than the decision of the court since his claim was dismissed with costs.
¬†¬†¬†¬†¬†¬†¬†¬†¬†The court may also consider the relative financial circumstances of the parties.¬† Little is known regarding this factor.¬† It appears from the evidence that both parties have similar financial circumstances.¬† Both have legal costs arising from the litigation.
¬†¬†¬†¬†¬†¬†¬†¬†¬†There are no other factors raised by Mr.¬†Wheeler and, in the absence of submissions from Mr.¬†Charland, no other factors that the court considers appropriate to take into account.
¬†¬†¬†¬†¬†¬†¬†¬†¬†On consideration of the factors set out in Rule¬†9-1(6), I conclude that Mr.¬†Wheeler is entitled to double costs from the date of the first formal offer, June¬†8, 2012.¬†