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.

Posts Tagged ‘BC Supreme Court’

ICBC Injury Claims and Formal Settlement Offers; What You Need to Know

May 10th, 2010

When taking an ICBC or other BC personal injury claim to trial in the Supreme Court it is vital to understand the financial consequences that can be triggered when formal settlement offers are made. I have written dozens of articles on this topic and you can access these here.

Below is a brief video discussing some of the key factors you need to consider when reviewing ICBC’s formal settlement offer under the BC Supreme Court Rules and further the issues you should consider when making your own formal settlement offer. I hope this information is of assistance.


ICBC Injury Claims: Provincial Court vs. BC Supreme Court

March 17th, 2010

When deciding how to advance an ICBC injury claim one of the important decisions that needs to be made is which court to sue in.  Should the claim be made in Small Claims Court (The Provincial Court of BC) or in the Supreme Court?

Both courts have notable differences.  Perhaps the greatest distinguishing feature (from an injury claims perspective) is their monetary jurisdiction.  The maximum award for damages that can currently be made in the Provincial Court is $25,000.  The Supreme Court has an unlimited monetary jurisdiction.

For serious injury claims there is not much of a choice to make, these are almost always filed in the Supreme Court.  But what about more modest claims, claims that may fall in the $20,000 – $30,000 range?  Where should these be filed?

While the various courts have many different advantages and disadvantages (such as discovery rights, rules addressing expert evidence, pre-trial procedure and costs consequences) there is one reality that is well recognized by many personal injury lawyers.  Typically a similar claim in the Supreme Court can result in a higher assessment of non-pecuniary damages than one assessed in the Provincial Court.  There is nothing wrong with this variance in law as the range of acceptable non-pecuniary damages for any given injury can be quite broad.

While this discrepancy is well known to many practicing lawyers, I have never seen it addressed in a judgement until now.  Reasons for judgement have come to my attention discussing the sometimes differing views of Supreme Court vs. Provincial Court judges in the assessing non-pecuniary damages for soft tissue injuries.

In today’s case (Gatari v. Wheeler, BCPC Victoria Registry File No. 080409) the Plaintiff was involved in a 2007 rear end collision near Duncan, BC.  This was a Low Velocity Impact.  ICBC defended the case in accordance with their LVI policies and the Defence Lawyer argued at trial that the Court should dismiss the case on the basis that any injuries suffered were so minor that they did not warrant compensation or in the alternative damages between $1,000 – $2,000 should be awarded.

The Plaintiff’s lawyer sought a significantly higher award.  Judge Kay found that the Plaintiff suffered a mild soft tissue injury of 7 months duration and awarded non-pecuniary damages of of $7,500.  In doing so Judge Kay addressed the discrepancy in non-pecuniary damage awards between the Provincial and Supreme Court.  Specifically Judge Kay stated as follows:

This court is aware that quantum of damage awards in cases similar to the one at bar vary dramatically.  This court is also aware that the major variation is attributable to difference between cases that are heard in Supreme Court as opposed to those that are heard in Provincial Court.  In general, awards in Supreme Court are much higher than those that are made in Provincial Court but this court notes that the cases that come before the Supreme Court, while they may be similar in circumstances, they are distinguishable by the severity of the injuries and interference with enjoyment of life.  While recovery periods may be similar, claimants in Supreme Court tend to testify to a greater overall impact on life in terms of, inter alia, more severe pain and suffering and more time lost from work.



Here We Go Again – Rule 37B Amended

June 24th, 2009

A year ago the BC Rule dealing with formal offers in the BC Supreme Court, Rule 37, was repealed and replaced with Rule 37B.   One of the primary differences between the rules was the greater discretion given to trial judges in awarding costs to litigants after beating a formal settlement offer at trial.

I have written about every Rule 37B case that came to my attention over the past year keeping track of the judicial development of this rule.  Now, after being in force for a short period of time, Rule 37B is being amended with the changes taking effect on July 1, 2009.

The new changes seem to be in direct response to a recent judgement of Mr. Justice Goepel where he decided that Rule 37B does not give judges the discretion to award Defendants their trial costs after beating a formal offer of settlement at trial.  This interpretation was great for Plaintiffs in personal injury claims because it diminished the financial risks for personal injury trials that did not proceed favorably.  I thought that the Court of Appeal would likely determine whether Mr. Justice Goepel’s interpretation was correct but this no longer will be necessary as the Rule amendment specifically addresses this point.

Interestingly, the new rule does not specifically address whether a Defendant being insured is a relevant factor for the court to consider when looking at the ‘financial circumstances of the parties’.  BC Courts have been inconsistent in determining whether this is a relevant consideration in ICBC Injury Claims.

As of July 1, 2009 the new Rule will read as follows:

Definition

(1) In this rule, offer to settle means

(a) an offer to settle made and delivered before July 2, 2008 under Rule 37, as that rule read on the date of the offer to settle, and in relation to which no order was made under that rule,

(b) an offer of settlement made and delivered before July 2, 2008 under Rule 37A, as that rule read on the date of the offer of settlement, and in relation to which no order was made under that rule, or

(c) an offer to settle, made after July 1, 2008, that

(i)  is made in writing by a party to a proceeding,

(ii)  has been delivered to all parties of record, and

(iii)  contains the following sentence: “The ….[name of party making the offer]…. reserves the right to bring this offer to the attention of the court for consideration in relation to costs after the court has rendered judgment on all other issues in this proceeding.”

Offer not to be disclosed

(2) The fact that an offer to settle has been made must not be disclosed to the court or jury, or set out in any document used in the proceeding, until all issues in the proceeding, other than costs, have been determined.

Offer not an admission

(3) An offer to settle is not an admission.

Offer may be considered in relation to costs

(4) The court may consider an offer to settle when exercising the court’s discretion in relation to costs.

Cost options

(5) In a proceeding in which an offer to settle has been made, the court may do one or more of the following:

(a) deprive a party, in whole or in part, of any or all of the costs, including any or all of the disbursements, to which the party would otherwise be entitled in respect of all or some of the steps taken in the proceeding after the date of delivery of the offer to settle;

(b) award double costs of all or some of the steps taken in the proceeding after the date of delivery of the offer to settle.

(c) award to a party, in respect of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle, costs to which the party would have been entitled had the offer not been made;

(d)  if the offer was made by a defendant and the judgment awarded to the plaintiff was no greater than the amount of the offer to settle, award to the defendant the defendant’s costs in respect of all or some of the steps taken in the proceeding after the date of delivery of the offer to settle.

[am. B.C. Reg. 165/2009, s. 1 (a), (b) and (c).]

Considerations of court

(6) In making an order under subrule (5), the court may consider the following:

(a) whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered or on any later date;

(b) the relationship between the terms of settlement offered and the final judgment of the court;

(c) the relative financial circumstances of the parties;

(d) any other factor the court considers appropriate.

Costs for settlement in cases within small claims jurisdiction

(7) A plaintiff who accepts an offer to settle for a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds that there was sufficient reason for bringing the proceeding in the Supreme Court and so orders.

[en. B.C. Reg. 165/2009, s. 1 (d).]

Counter offer

(8) An offer to settle does not expire by reason that a counter offer is made.

[en. B.C. Reg. 165/2009, s. 1 (d).]


ICBC Claims, Pre-Trial Costs and Rule 66

May 14th, 2009

If you are involved in an ICBC claim under the fast track rule in BC Supreme Court (Rule 66) and settle your claim prior to trial how much are you entitled to for pre-trial Tarriff Costs?

Rule 66(29) governs and reads as follows:

Costs

(29)  Unless the court orders otherwise or the parties consent, and subject to Rule 57 (10), the amount of costs, exclusive of disbursements, to which a party is entitled is as follows:

(a) if the time spent on the hearing of the trial is one day or less, $5 000;

(b) if the time spent on the hearing of the trial is more than one day, $6 600

On the face of it, it appears that when a case settles pre trial up to $5,000 in costs could be included. However, recent court cases have applied a restrictive interpretation to this rule limiting the amount of pre-trial costs available in a Rule 66 action.   These cases have limited the amount of pre-trial costs available to $3,400.  Today, a case from the BC Supreme Court, Vancouver Registry, was released confirming this restrictive interpretation.

In today’s case (Cathcart v. Olsen) the Plaintiff settled her claim pre trial for an amount plus Tarriff costs.  At issue was how much should be paid for pre-trial Tarriff Costs.  Registrar Sainty of the BC Supreme Court,  in finding that the plaintiff was entitled to $2,890 in tarriff costs summarized the law and reasoned as follows:

[12]        The defendants argue that costs ought to be assessed as a proportion of the maximum allowable for pre-trial preparation under Rule 66, being $3,400. That proportion they say ought to depend on at what the stage in the proceedings the matter settled and how much pre-trial work remained to be done had the matter not settled. This, the defendants argue, is the required result applying the decision of Pittfield, J in Bowen v. Martinec, 2008 BCSC 104. In that case His Lordship was asked to answer the following question:

Where a formal offer to settle made under Rule 37 of the Rules and in Form 64 is accepted before trial in an action to which Rule 66 of the Rules applies, are the costs in the action assessed by reference to the fixed scale of costs under Rule 66(29) of the Rules or by reference to Appendix B to the Rules?

[13]        In answering the question put to him, His Lordship reviewed the law including the decisions of Macaulay, J in Duang and the Court of Appeal in Anderson (both supra) and held:

[21       In my opinion, the principles that can be derived from Duong and Anderson should be applied in the determination of costs in circumstances where an offer has been accepted before the commencement of trial. It is evident from Rule 66 that a cap has been imposed upon the recovery of costs in an action to which the Rule applies. It is also clear that the court can give effect to Rule 37 offers to settle. I am unable to identify any reason why the Rule 66 regime should apply in respect of the determination of costs following a trial where offers to settle have been made and rejected, but those situations where an offer is made and accepted before trial should justify taxation under Appendix B.

[22]      I adopt the view expressed by Macaulay J. which is that the amount of recoverable costs stipulated in Rule 66 should be allocated in part to trial and in part to pre-trial preparation. The part allocable to trial should be determined by deducting the global costs contemplated in respect of a one-day trial from the global costs contemplated in respect of a two-day trial. The costs for pre-trial preparation in either case should be determined as the difference between the global cost amount for a one-day trial and the daily trial costs. As the Rule presently stands, the recoverable costs per day of trial are $1,600, and the recoverable costs attributable to pre-trial preparation, $3,400.

[14]        His Lordship then stated:

[24]      It will be incumbent upon the parties to agree on the proportion of the pre-trial preparation which had been undertaken by the plaintiff to the date of the defendant’s offer to settle. In the absence of an agreement, the parties may resolve differences on taxation, whereupon the court will exercise the discretion conferred upon it by Rule 66(29.1).

[25]      It follows that the answer to the stated case is that costs in an action subject to Rule 66, settled before trial pursuant to an offer of settlement must be assessed by reference to the fixed scale of costs under Rule 66(29), and not by reference to Appendix B to the Rules of Court.

[15]        Essentially Pitfield J’s decision mandates that, where a formal offer to settle has been made in accordance with the Rules, pre-trial costs are to be based on the proportion of pre-trial preparation that has been undertaken up to the date of the offer to settle and the party to whom costs are to be paid is entitled to its proportionate share of the $3,400 cap. Mr. Chaudhary, for the defendants, argues that the same principles ought to apply in these circumstances where, although no formal offer to settle was made, an informal settlement was reached. He submits that I ought not to deviate from the methodology proposed by Pitfield, J. in Bowen (supra).

[16]        Mr. Harbut, for the plaintiff, suggests however that Pitfield, J’s decision in Bowen cannot be reconciled with the decision of the Court of Appeal in Anderson.  He submits Anderson should be read to say that, while there is a ceiling in the amount of costs that a successful litigant may be awarded, where a Rule 66 action has been settled, provided the party whose costs are being assessed can satisfy the assessing officer that that party would be entitled, under Appendix B of the Rules, to at least the amount of the ceiling ($3,400) in tariff items then that party is entitled to be awarded the full amount of that ceiling. I cannot agree with this latter submission. In my view, I am bound to employ the same reasoning as that employed by Pitfield, J in Bowen to these circumstances; i.e. award the plaintiff his proportionate share of the cap, based on the stage of preparation reached as at the date of the offer to settle.

[17]        That being said, there is one additional issue which must be considered. In Anderson, the Court of Appeal states (at ¶47):

I also agree with Macaulay, J that the intent of the rule [Rule 66] was to avoid the necessity of a taxation and that it would frustrate that intent to order a taxation of costs under the rule…

[18]        Accordingly, the Court of Appeal has endorsed the presumption that the intent of Rule 66 is to avoid the necessity of an appearance before the registrar to assess costs. Pitfield, J’s method – to determine costs dependant on the stage of the pre-trial preparation – seems to me to invite assessments, rather than reduce them. I say this as, in instances where the parties cannot agree on the proportion of work undertaken at the time of settlement, taxation becomes the likely, rather than the unlikely, course.

[19]        To counterbalance this, however, I believe that the Court of Appeal in Anderson has also endorsed a somewhat “rough and ready” manner of assessing the consequences of accepting an offer to settle when the provisions of Rule 66 apply (see paragraph 49). The Court of Appeal suggests that an assessing officer, on an assessment of costs in similar circumstances, should use a rough and ready approach to establish what stage the proceeds were at when settlement was reached in deciding what proportion of the “cap” ought to be paid. That rough and ready approach (and the one I will employ here), in my view includes both a consideration of the work done to the date of settlement by the party to whom the costs are to be paid as well as a consideration of what costs the payee might be entitled to under the tariff if costs were awarded under Appendix B of the Rules.

[20]        Mr. Harbut stated that his pre-trial preparation had progressed to a great extent when the offer was accepted. He confirmed that the items that had been undertaken included commencing the action, discovery of documents, some examinations for discovery, settlement negotiations and production of expert reports. He argued that, with the exception of the actual trial, most of the trial preparation had been completed. Thus the plaintiff should be awarded substantially all of the amount of the cap.

[21]        Mr. Chaudhary in his submissions set out a number of items that remained to be done (additional document discovery, witness preparation, further expert’s reports, to name a few) and argued that as this action settled some four months before trial a substantial amount of work remained to be done and the proportion awarded should reflect that.

[22]        Here, I am satisfied that some 85% of the work required to prepare for trial had been done up to the date that the offer was accepted. Accordingly, the plaintiff is entitled to $2,890 in “tariff” costs plus applicable taxes, together with such disbursements as have been agreed between the parties. In my view a substantial amount of work had been done to prepare for the trial. In addition, had the costs been awarded under Appendix B of the tariff the plaintiff would likely have received at least 10 units under item 1B, 2 to 3 units under item 3, 2 to 3 units each under items 7 and 8, 4.5 units under items 14 and 15, 2 or 3 units under each of Items 13A and 13B, plus 5 units for item 34 resulting in, on a rough and ready calculation, of some 31 to 35 units, well within or certainly more than I am awarding in these circumstances.

[23]        If the parties require a certificate they may prepare it, each sign it and forward it to me for my signature.


Even More Analysis of Rule 37B

January 28th, 2009

Well the cases seem to be coming in at a good pace and hopefully Rule 37B will start seeing some consistency in its interpretation by the BC Supreme Court.  

Today another case was released by the BC Supreme Court applying and interpreting this rule.  In this case the Plaintiff was involved in a motor vehicle collision and sued for damages.  The Defendants made an offer to settle for $16,000 plus costs under the old Rule 37.  The Plaintiff rejected the offer, went to trial and was awarded just over $12,000.  Madam Justice Morrison made the following findings about the costs consequences flowing from these facts:

Policy Reasons for the Offer to Settle Rule

[42]            I turn first to the policy reasons behind the new rule.

[43]            The Court of Appeal commented on the purpose of the former Rule 37 in several cases.  Although Rule 37 was repealed and replaced with Rule 37B, the underlying rationale of Rule 37 is, in my opinion, still informative.  Rule 37 was designed to encourage settlement.  In MacKenzie v. Brooks, 1999 BCCA 623, 130 B.C.A.C. 95, the court made the following comment on the purpose of Rule 37:

[21]      Rule 37 is clearly designed to encourage the early settlement of actions. It does so by rewarding the party who makes an early and reasonable settlement offer, and by penalizing the party who declines to accept such an offer. The reward or penalty takes the form of costs (in some cases, double costs) from the date the offer is made. The significant role which costs now play in the litigation process operates as a powerful incentive to parties to make early offers of settlement under the Rule and to accept reasonable offers.

[44]            In Skidmore v. Blackmore (1995), 2 B.C.L.R. (3d) 201, 122 D.L.R. (4th) 330 (C.A.), the Court of Appeal commented on an older version of Rule 37 and Rule 57(9) (costs follow the event) at para. 37:

[37]      These Rules are designed to discourage frivolous actions and defences and to encourage the parties to make reasonable offers to settle as early as possible. Thus, party and party costs serve many functions. They partially indemnify the successful litigant, deter frivolous actions and defences, encourage both parties to deliver reasonable offers to settle, and discourage improper or unnecessary steps in the litigation.

[45]            Rule 37B is still designed to discourage frivolous actions and encourage parties to make and accept reasonable offers.  In Alan Seckel & James MacInnis, B.C. Supreme Court Rules Annotated 2009 (Toronto: Thomson, 2008), the authors commented on the introduction of Rule 37B.  They say that the new rule was necessary because the old rules had become dysfunctional, largely because of the lack of flexibility.  They describe the new rule as a welcome improvement.  They add at 373 that “the difficulty with Rule 37B will invariably be its lack of direction for parties and trial judges as to how to effect fairness in the face of the same problems which made interpretation and application of Rules 37 and 37A so difficult.”

[46]            I agree in this respect with the following observation by Hinkson J. in Bailey v. Jang, 2008 BCSC 1372, a personal injury case heard before a jury, at paras. 17-18:

[17]      In Mackenzie v. Brooks et al, 1999 BCCA 623 (sub nom. Mackenzie v. Brooks et al) 130 B.C.A.C. 95 at p. 21, the British Columbia Court of Appeal described the predecessor rules to Rule 37B as designed to encourage settlement by, among other things, “penalizing the party who declines to accept” an offer to settle.

[18]      While Rule 37B has brought about the reversion from a strict code to a reliance on judicial discretion with respect to costs, the use of costs to encourage or to deter certain types of conduct remains, albeit based upon the factors set out in subrule 37B(6).

The Factors under Rule 37B

[47]            I turn now to the factors under Rule 37B.

[48]            In my opinion, given the fact that the offer was made three years and almost four months after the date of the accident and well over a year after the action was commenced, the plaintiff should have known what medical information was available to him.  I agree with the defendants that this is a case where Mr. Leus was working full time from the date of the accident.  It is true that in Fast Track Litigation it is not cost efficient to end up with several medical legal reports from one doctor.  However, Mr. Leus did not have any information from Dr. Hodgeson, informal or otherwise, at the time of the offer.

[49]            As the defendants point out, the plaintiff could have contacted Dr. Hodgeson earlier.  By the time the report was requested, it was already 60 days before the trial so the rule requiring notice could not have been met in any event.  The further requests that were made were well within the 60 days.

[50]            The offer was made in timely manner and at a time when the plaintiff should have known his case.  It was an offer that ought reasonably to have been accepted at the date of the offer.

[51]            While I have considered the argument that the defendants, because of the participation of ICBC, can take advantage of making an early, low offer, in my opinion there is no such unfairness demonstrated.

[52]            In this case, $16,000 is a more favourable amount to the plaintiff than the $12,748.48 ordered by the court.  This factor favours the plaintiff being penalized for not accepting an award 20 percent greater than the judgment.  The fact that the numbers are low does not change the analysis.

[53]            The plaintiff argues that he should get preference under this factor because ICBC has significantly more resources to absorb the costs of litigation than he does and, as a result, ICBC is in a unique position to make early offers to settle.

[54]            The defendants argue that ICBC is not a party and the legal principles that developed under the old rule should still apply.  It would not be fair, they argue, if they were forced to pay the entire judgment, disbursements, and their own costs after they made a reasonable formal offer that was more than the final award.

[55]            Different views have been expressed by members of the court on the question of the relevance of fact that the defendants have insurance.

[56]            Mr. Justice Hinkson made the following comments in Bailey at paras. 32-34:

[32]      Second, [the plaintiff] places her financial position against that of ICBC, as opposed to that of the defendants.

[33]      While I accept that it is likely that most drivers in British Columbia are insured by ICBC, the wording of subrule 37B does not invite consideration of a defendant’s insurance coverage.  There may be good policy reasons for this.  Insurance coverage limits with ICBC are not universal, and will vary from insured to insured.  Certain activities may result in a breach of an individual’s insurance coverage, or the defence of an action under a reservation of rights by ICBC.  A plaintiff will not and likely should not be privy to such matters of insurance coverage between a defendant and ICBC.

[34]      The contest in this case was between the plaintiff and the defendants, and the insurance benefits available to the defendants do not, in my view, fall within the rubric of their financial circumstances, any more than any collateral benefit entitlement that a plaintiff may have would affect that person’s financial circumstances for the purpose of determining their loss.

[57]            Mr. Justice Butler in Arnold said that the mere fact that the defendant is insured is not enough to deprive the defendant of costs at para. 23:

[23]      Mr. Arnold has asked that I take into account the relative financial circumstances of the parties when exercising my discretion.  I find that I am unable to do so.  First, Mr. Arnold has provided no evidence regarding his financial circumstances other than the assertion that the likely result of a costs award in favour of the defendant will leave him with no recovery from the action.  Rule 37B gives this Court greater discretion than it had under the old Rule 37.  It specifically allows the Court to consider the relative financial circumstances of the parties.  However, there will always be a substantial difference between the relative financial circumstances of the usual personal injury plaintiff and the defendant’s motor vehicle insurer.  That difference, in and of itself, is not enough for the Court to exercise its discretion to deprive the defendant of costs.  If that was the intent of the new rule, it would have been more clearly articulated.

[58]            Conversely, Madam Justice Boyd in Radke v. Parry, 2008 BCSC 1397, did consider the fact that the defendants were insured by ICBC at para. 42, a case where costs were awarded against the defendants:

[42]      In the case at bar, on a review of the Rule and the authorities, I conclude that the plaintiff is indeed entitled to double costs from the date of the August 12th offer of settlement forward…It is also clear that there is a substantial disparity in financial circumstances between the parties.  The defendants, represented by ICBC, had substantially greater resources to finance a trial than the individual plaintiff.  Had the defendants accepted the plaintiff’s initial reasonable offer, the plaintiff would not have had to incur the significant costs associated with nearly two weeks of trial.

[59]            Even if there may be cases in which the fact that a party is insured may be relevant to that party’s financial circumstances and hence the party’s ability to pay a costs award, this is not one of those cases.  Here, there is very little information about the actual financial circumstances of the plaintiff, Mr. Leus.  Though Mr. Leus says he has a mortgage and a family to support, no details are provided as to his actual income and expenses.   Nor is there much information about the actual financial information of the defendants, John Laidman, Marjorie Laidman, and Ference Sandor.  The Court cannot draw permissible inferences from the very

[60]            The defendants argue that Rule 57(10) should be considered whereas the plaintiff says that the Court is only being asked to decide entitlement to costs and not quantum, so Rule 57(10) is not applicable.

[61]            Rule 57(10) says:

A plaintiff who recovers a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds that there was sufficient reason for bringing the proceeding in the Supreme Court and so orders.

[62]            I am satisfied that Mr. Leus has shown that at the time his claim was initiated, there was a sufficient reason to bring the action in Supreme Court.  The amount he was claiming was close to the line; it was appropriate to use the discovery process to obtain evidence of the others involved in the accident:  Reimann v. Aziz, 2007 BCCA 448, 72 B.C.L.R. (4th) 1.

Conclusion

[63]            In conclusion, the purpose of Rule 37B is to encourage settlement and avoid frivolous use of court resources by imposing punitive cost sanctions.  In the present case, the defendants made a reasonable offer to settle that ought to have been accepted by the plaintiff.  The offer was 20 percent higher than the plaintiff’s final award.  Given the overarching purpose of Rule 37B, Mr. Leus should be denied his costs, including his disbursements of $7,500, from the date of the offer, because he failed to accept the offer to settle.

[64]            However, though the court could award the defendants single costs, I have decided it is not appropriate to do that in the particular circumstances of this case.  The decision depriving the plaintiff of his costs meets the objectives of the Rule.  I have considered, in particular, the size of the award, the fact that it was less than $4,000 lower than the offer, and the impact of this decision on what Mr. Leus will actually receive.


ICBC Claims and Court 'Costs'

January 23rd, 2009

One important difference between the BC Supreme Court and BC Small Claims Court is the availability of court ‘costs’ to the winning litigant.

A winning party in the Provincial Court is usually awarded their disbursements, that is, the money it cost to bring the legal proceedings such as court filing fees, the cost of producing medical evidence etc.  The winner cannot, however, be awarded Tariff Costs (money to compensate the party for the various steps they took in the lawsuit).  This can be contrasted with the Supreme Court where a winning party can be awarded Costs and Disbursements.   This can make a big difference as a ‘costs’ award after a Supreme Court trial could easily exceed $10,000.

What if you bring your ICBC injury claim in Supreme Court but are awarded an amount of money in the Small Claims Court’s jurisdiction (currently up to $25,000).  Could you still get awarded Tariff Costs?  The answer is sometimes and the starting point is to look at Rule 57(10) which states:

(10)  A plaintiff who recovers a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds that there was sufficient reason for bringing the proceeding in the Supreme Court and so orders.

So, the question is when is there sufficient reason for bringing an ICBC injury claim in Supreme Court when the claim ends up being worth less than $25,000?  Reasons for judgement were released today by the BC Supreme Court addressing exactly this question.

In today’s case the Plaintiff was awarded $20,000 in damages as a result of a 2005 BC motor vehicle collision.  In deciding that the Plaintiff is entitled to costs Mr. Justice Truscott summarized and applied the law with the following reasons for judgment:

[17]            The plaintiff Truong relies upon a decision of this court in Caldwell v. Maga [1997] B.C.J. No. 2166 (BCSC) where there were two plaintiffs, one being awarded $5,500 for damages and the other $4,500 for damages, both involved in a rear end accident.  This was at a time when the limit in small claims actions was $10,000.

[18]            Mr. Justice Drost referred to a previous decision of Mr. Justice Drake where he also dealt with two plaintiffs, who were each awarded under $10,000, and said in awarding them costs that the totality of the two judgments amounted to more than the small claims limit and they were entitled to costs.

[19]            Mr. Justice Drost determined to follow the reasoning of Mr. Justice Drake in that decision (Phosy & White v. Island Pacific Transport Ltd. [1996] B.C.J. No. 1037, (2 May 1996), Victoria Registry No. 95/1123).

[20]            I question the correctness of these two decisions as I tend to agree with defence counsel that taken to its logical conclusion that reasoning would mean that 26 claimants each with $1,000 claims would be entitled to sue in Supreme Court in one writ because the total would exceed $25,000, the present limit of small claims jurisdiction.

[21]            I consider it far more likely that the $25,000 limit of small claims jurisdiction should apply to each claim of each plaintiff no matter how many plaintiffs there might be.

[22]            However, I am obliged to follow the previous decisions of this Court which would probably entitle the two plaintiffs to sue in Supreme Court.

[23]            Apart from this, at the best of times I consider it difficult for any plaintiff’s counsel to estimate the appropriate range involved for personal injury claims of his clients at the initiation of the action.  The medical conditions of many plaintiffs continue to change following the initiation of the action as they continue to recover from their injuries or continue to suffer.

[24]            Here, even after Dr. Yong’s optimistic report of March 14, 2006, by January 26, 2008 he was still saying that it was likely that the plaintiff Truong would continue to suffer some degree of left shoulder pain probably for another one or two years.

[25]            The award to the plaintiff Truong of $20,000 is by itself less than the limit of jurisdiction in small claims of $25,000, but is not less by any large amount, and with the difficulty facing counsel of accurately estimating the range for a personal injury for his client at the initiation of litigation, knowing that if action is commenced in small claims his client will be limited to $25,000 no matter that the assessment might be in excess of $25,000, I am satisfied this plaintiff did have sufficient reason for bringing her claim in Supreme Court.

[26]            The plaintiff Truong will therefore have her costs of her claim at Scale B, only attributable to her claim.


Supreme Court of BC and Trial Costs

September 23rd, 2008

Today I’m blogging from sunny Kamloops from my colleague Peter Jensen’s office.  Clients are coming soon so I have to keep this short.

The Supreme Court of BC has an unlimited monetary jurisdiction whereas BC small claims court currently has a jurisdiction of $25,000 or less.  When suing for damages as a result of a BC car accident you have to decide which court you will sue in.

When involved in an ICBC tort claim in the BC Supreme Court the winner can be awarded Costs, whereas in Small Claims Court the winner can only be awarded disbursements as opposed to Tariff Costs.

When you bring an ICBC claim in Supreme Court and are awarded less than $25,000 can you still be awarded your court tariff Costs?  The answer is sometimes.

Rule 57(10) of the BC Supreme Court rules states that

A plaintiff who recovers a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds that there was sufficient reason for bringing the proceeding in the Supreme Court and so orders.

The question then is, did you have a good reason to sue in Supreme Court when you started the lawsuit?

Reasons for judgement were released today awarding a Plaintiff Costs even though the ultimate award was below $25,000.  At Paragraphs 7-10, the trial judge (Madam Justice Humphries) explained why in this case the Plaintiff had ‘sufficient reason’ to bring the suit is Supreme Court holding that:

[7] The relevant time at which the value of (the Plaintiff’s) claim should be assessed, then, is when the action was commenced.  At that time, (the Plaintiff) still had some residual effects from the accident and was missing the occasional day of work.  I found this evidence credible, and noted that she still had occasional flare-ups, with decreasing frequency.  Her voluntary retirement worked to the benefit of the defendant in that any potential ongoing wage loss from these flare-ups would not be claimed against him.  (the Plaintiff) was careful to ensure that only those days attributable to the effects of the accident were claimed for.  She asserted a claim for loss of earning capacity, but decided not to pursue it by the time of trial.  Although such an award would not have been large, if any at all were established, it is difficult to say, in hindsight, that the entire claim would obviously have come under the Small Claims limit of $25,000 at the time the action was commenced.  Plaintiff’s counsel subsequently came to assess the claim with the advantage of all the information available by the time of trial and to put forward a realistic and sustainable range of damages in his final submissions, but that is not, according to Reimann, relevant to the present issue.

[8] In Faedo v. Dowell and Wachter, M064051 (October 19, 2007) Vancouver, Curtis J. held that in a situation where the defendant put the plaintiff to the proof of having suffered any injury at all, thus making her credibility a crucial issue at trial, it was reasonable for the plaintiff to require the assistance of counsel.  She was therefore justified in commencing the action in Supreme Court where she could hope to recover some of the costs it was necessary for her to expend in retaining counsel to recover the compensation to which she was found to be entitled.  This reasoning has application here as well.

[9] In the result, the plaintiff has advanced sufficient reason for having commenced her action in this court and is entitled to her costs pursuant to Rule 66.

This is a good judgement for Plaintiffs bringing ICBC claims, particularly those involved in Low Velocity Impacts (LVI’s) where ICBC denies that injury occurred.  It recognizes the fact that ICBC often tells people that they aren’t injured at all and this brings their credibility into play.   Here the court realized that in such circumstances it is appropriate to hire a personal injury lawyer and try to offset some of these costs by suing in Supreme Court even though the Small Claims Court has sufficient monetary jursidiction to deal with the tort claim.


Moving Down to Small Claims Court

August 8th, 2008

So you are injured in a BC car accident and start an ICBC claim. ICBC makes an inadequate settlement offer for your pain and suffering and you start a lawsuit in BC Supreme Court. Then, your injuries take a turn for the better and you realize your claim can adequately be dealt with more efficiently in Small Claims Court. Can you apply to move your claim down? Absolutely!

Section 15 of the Supreme Court Act allows for such an application. Specifically, s. 15 reads as follows:

Transfer to Provincial Court

15 A judge or master may transfer proceedings to the Provincial Court of British Columbia if

(a) the proceedings are within the jurisdiction of the Provincial Court under the Small Claims Act,

(b) a party to the proceedings applies to the judge or master, or all parties to the proceedings agree to the transfer, and

(c) the judge or master considers it appropriate to do so.

Both Supreme Court and Small Claims Court have their own strengths and weaknesses as forums for advancing ICBC injury claims. The decision of which court to sue in is not always an easy one and it is a good idea to get a free consultation with an ICBC claims lawyer before deciding how to proceed. It is reassuring, however, to know that after you start in Supreme Court you can bring an application to transfer the proceeding to the lower court.

Today, reasons for judgement were released allowing just such an applicaiotn that is worth reviewing for anyone involved in an ICBC Supreme Court claim that is considering moving down to the Provincial Court.


More on Court Costs, Settlement Offers, and Your ICBC Claim

June 13th, 2008

If you are advancing and ICBC injury claim in BC Supreme Court, whether or not you are represented by an ICBC Claims Lawyer, you need to know something about Formal Settlement Offers. These settlement offers bring potential consequences if they are not accepted and these need to be considered when deciding whether an ICBC settlement offer is fair.

Rule 37 of the BC Supreme Court Rules permits parties to a lawsuit to make a Formal Settlement Offer and if the claim goes to trial and the settlement offer is beaten there can be significant Costs consequences (where the losing side has to pay the winning side tarriff court costs and disbursements which can easily exceed $10,000).

If you think of taking an ICBC claim to trial and winning I imagine you think of proving the other driver is at fault and being awarded money for your injuries. With formal settlement offers, winning is not quite that simple. If ICBC makes a formal settlement offer under Rule 37 and the judge or jury awards you less this can be considered a loss. Rule 37(24) sets out the consequences to a Plaintiff for failing to accept a Defendant offer to settle and ‘losing’ at trial, the subrule reads as follows:

Consequences of failure to accept defendant’s offer for monetary relief

(24) If the defendant has made an offer to settle a claim for money and the offer has not expired or been withdrawn or been accepted,

(a) if the plaintiff obtains judgment for the amount of money specified in the offer or a lesser amount, the plaintiff is entitled to costs assessed to the date the offer was delivered and the defendant is entitled to costs assessed from that date, or

(b) if the plaintiff’s claim is dismissed, the defendant is entitled to costs assessed to the date the offer was delivered and to double costs assessed from that date.

On the other side of the coin, there can be more than one way of winning. If you make a formal offer to settle your ICBC claim in compliance with Rule 37 and the judge or jury award you more money, Rule 37(23) sets out the consequences to the Defendant. The subrule reads as follows:

Consequences of failure to accept plaintiff’s offer to settle a monetary claim

(23) If the plaintiff has made an offer to settle a claim for money, and it has not expired or been withdrawn or been accepted, and if the plaintiff obtains a judgment for the amount of money specified in the offer or a greater amount, the plaintiff is entitled to costs assessed to the date the offer was delivered and to double costs assessed from that date.

Now, after absorbing all of the above you need to know that RULE 37 and 37A are being repealed as of July 2, 2008 and being replaced with Rule 37(B)!

That does not mean that you just wasted your time learning the above. If a formal offer to settle an ICBC injury claim is made before July 2, 2008 it needs to comply with Rule 37 or Rule 37A to trigger ‘costs consequences’.

To trigger costs consequences in an ICBC claim that goes to trial any offer made after July 2, 2008 has to comply with Rule 37B. To do so the offer must

1. be made in writing

2. be delivered to all parties of record, and

3. contain the following sentence “the [name of party making the offer] reserves the right to bring this offer to the attention of the court for consideration in relation to costs after the court has rendered judgement on all other issues in this proceeding”.

It seems that the purpose of Rule 37B) is to simplify the process of making formal settlement offers. The consequences of taking ICBC claims to court and beating (or not beating) a formal settlement offer seem to be less certain under this new rule. Rule 37B(4) sets out the consequences as follows: “The court may consider an offer to settle when exercising the court’s discretion in relation to costs”.

The options given to the court are set out in subrule 5 which states:

In a proceeding in which an offer to settle has been made, the court may do one or both of the following:

(a) deprive a party, in whole or in part, of costs to which the party would otherwise be entitled in respect of the steps taken in the proceeding after the date of the delivery of the offer to settle;

(b) award double costs of all or some of the steps taken in the proceeding after the date of the delivery of the offer to settle.

Subrule 6 sets out the factors a court may consider in exercising its costs discretion where a formal offer was made stating:

In making an order under subrule (5), the court may consider the following:

(a) whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered or on an later date

(b) the relationship between the terms of the settlement offered and the final judgment of the court;

(c) the relative financial circumstances of the parties;

(d) any other factor the court considers appropriate

I for one welcome Rule 37B. One of the biggest criticisms made by plaintiff ICBC injury claims lawyers was that the old Rule 37 was unfair to plaintiffs as a person injured in a car accident was always in a worse financial position to face the consequences of losing at trial than ICBC. This lopsided reality created a lot of pressure on people advancing ICBC injury claims in BC Supreme Court to consider settlement when faced with a Rule 37 formal settlement offer.

It will be interesting to see if our BC courts, when considering “the relative financial circumstances of the parties” will consider ICBC a party to the lawsuit of an ICBC injury claim. Typically, ICBC is not named as a defendant to a ICBC Injury tort Claim, instead those at fault for the collision are named and often they simply happen to be insured by ICBC. So ICBC is not formally a ‘party’ to most ICBC injury tort claims.

If the court is willing to consider the fact that the Defendant is insured when weighing the ‘relative financial circumstances of the parties‘ then this Rule is a welcome change for anyone advancing an ICBC injury claim. If not, perhaps the court is willing to consider this under “any other factor the court considers appropriate“.

Do you have questions about an ICBC settlement offer or the Rules of Court governing settlement offers in BC Supreme Court? If so click here to arrange a free consultation with ICBC Injury Claims lawyer Erik Magraken.

 


Court "Costs" and Your ICBC Injury Claim

June 11th, 2008

Reasons for judgment were released by the BC Supreme Court yesterday awarding a Plaintiff in a BC personal injury claim “costs” despite the fact that the Plaintiff’s award was within the small claims court jurisdiction.

This case gave me a good opportunity to write a little bit about the “costs’ consequences of bringing ICBC claims to trial and I intend to make this the first of several blog entries on this topic.

If you make an ICBC claim in BC Supreme Court and win (winning meaning you obtain a judgment in your favour greater than an ICBC formal settlement offer) you are generally entitled to ‘costs’ in addition to your award of damages.

For example, if a plaintiff with soft tissue injuries brings an ICBC claim to trial and is awarded $30,000 and ICBC’s formal settlement offer was $10,000, the Plaintiff would be entitled to “Costs” in addition to the $30,000 (barring any unusual developments at trial).

The purpose of awarding the winner Costs is to compensate them for having to go through the formal court process to get what is fair. This recognzes the fact that there are legal fees involved in bringing most ICBC claims to trial and one of the purposes of Costs is to off-set these to an extent.

Costs cover 2 different items, the first being disbursements (meaning the actual out of pocket costs of preparing a lawsuit for trial such as court filing fees and doctor’s fees in preparing medical reports) and the second being Tarriff costs – meaning compensation for many of the acutal steps in bringing a lawsuit in BC Supreme Court.

The Costs consequences after a BC Supreme Court Trial could easily be in the tens of thousands of dollars and this is often the case in many ICBC claims.

Costs are discussed in Rule 57 of the BC Supreme Court Rules and this rule is worth reviewing for anyone bringing an ICBC claim to trial in the BC Supreme Court. The winner does not always get their costs, however. One of the situations when a winner may not get their costs is when they are awarded an amount of money that was in the small claims court jurisdiction ($25,000 or less).

Rule 57(10) states that “A plaintiff who recovers a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds that there was sufficient reason for bringing the proceeding in the Supreme Court and so orders.”

As a result of this sub-rule, people who bring an ICBC claim to trial in BC Supreme Court and are awarded less than $25,000, may be disentitled to their Tariff Costs unless they can show ‘sufficient reason for bringing the proceeding in the Supreme Court.”

In this weeks judgement the court agreed that despite the fact that the Plaintiff was awarded $12,290 in damages (an award well within the small claims court jurisdiction), the Plaintiff did have sufficient reason to bring the proceedings in Supreme Court.

In reaching this decision the court referred to a leading BC Court of Appeal Case where it was held that “a Plaintiff does not have an on-going obligation to assess the quantum (value) of a claim and that the point in time for a consideration of whether a plaintiff had a sufficient reason for bringing a proceeding in the Supreme Court is the time of the initiation of the action.

The lawyer for the Plaintiff argued that when the lawsuit was started they were not in a position to finalize their valuation of this claim becase they did nothave a final medical report commenting on the plaintiff’s injuries. Also that since the Defendant took an LVI (low velocity impact) position it was important to sue in Supreme Court to have an examination for discovery of the Defendant (a procedure not available in small claims court).

For those and other reasons the court agreed and awarded the Plaintiff her Tariff Costs.

Do you have questions about an ICBC Claim, or BC Court Costs that you wish to discuss with an ICBC claims lawyer? If so click here to arrange your free consultation with Victoria ICBC Claims Lawyer Erik Magraken.