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 ‘costs’

“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.


“Legitimate Cause for Concern” When Defendant Offer Fails To Include Full Costs and Disbursements

April 21st, 2016

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, depriving a Defendant of double costs that they otherwise would have been awarded where their formal settlement offers failed to include separate costs and disbursements.

In today’s case (Lanz v. Silver Lady Limousine Services Ltd.) the Plaintiff was involved in two separate collisions and sued for damages.  A jury dismissed both lawsuits.

Prior to trial ICBC provided a formal settlement offer of $50,000 and 50% of costs and disbursements.  This was later withdrawn and replaced with a settlement offer of $70,000 inclusive of costs and disbursements and finally one of $80,000’new money’.  The Plaintiff rejected all of these offers.

The Plaintiff conceded the Defendants were entitled to costs for being on the winning end of the lawsuit but argued no double costs should be awarded as the offers ought not to have reasonably been accepted.  In depriving the Defendant of double costs Madam Justice Sharma expressed concern about the Defendant’s reluctance to include full costs in their offers and noted as follows:

[22]         The defendants first offered $50,000 plus only 50% of costs; their last offer was $80,000 “new money” inclusive of costs and disbursements. In my view, there is a legitimate cause for concern when a defendant’s offer does not include costs and disbursements in a personal injury case where liability and damages are at issue. It could be seen as a tactic discouraging the plaintiff from gathering evidence to substantiate her claim in the first place. Plaintiffs carry the evidentiary burden to prove their case and they are obliged to bring forward expert medical evidence. In this case, the defendant’s offer was made more than a year after the plaintiff’s original offer, when presumably significant costs may already have been incurred with no indication from the defendants that settlement was a possibility.

[23]         In the context of this case, I do not find the defendants’ offers to be ones the plaintiff ought to have accepted because they did not include costs and disbursements as discrete items. I see nothing about this case that justifies penalizing the plaintiff for failing to correctly guess the jury would not accept her claims. I conclude that awarding double costs amount to imposing a heavy penalty on a plaintiff that was forced to endure the unpredictability of a jury trial. I find the day before trial, she had reasonable basis to pursue her case at trial. The defendants’ offers were devoid of discrete recognition of costs and, in my view, that was a disincentive to settle.

[24]         The defendants’ application for double costs is dismissed


Scale C Costs Awarded Following Injury Prosecution “Of More Than Ordinary Difficulty”

June 3rd, 2014

Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, illustrating circumstances when increased “scale c” costs are appropriate.

In the recent case (Wallman v. Doe) the Plaintiff suffered a disabling brain injury following a motor vehicle collision and was awarded damages following a lengthy trial.  The Plaintiff was awarded costs on Scale C and in finding this increased scale was appropriate Mr. Justice Weatherill provided the following reasons:

6]             By any measure, this was a complex case that, although courteously and cooperatively fought, was nevertheless hard fought with little, if anything, conceded. The defendants’ position throughout was that the plaintiff’s alleged brain injury was not real. The trial occupied 29 days. Forty‑three witnesses were called by the parties, including 16 engineering and medical experts. Sixteen expert reports were exchanged.

[7]             The engineering experts provided opinions regarding the biomechanics of and the acceleration and other forces imparted upon a human body during a rear‑end collision, mechanical engineering, accident reconstruction, and Monte Carlo simulations to predict the probability of various accident scenarios.

[8]             The medical expert evidence included opinions of psychiatrists, psychologists, neurologists, a neuro‑opthalmologist, physiatrist and a speech pathologist.

[9]             In addition, there was expert evidence from occupational therapists, rehabilitation and vocational consultants, and economists.

[10]         The defendants conducted several pre‑trial examinations of nine witnesses, conducted two and a half days of examinations for discovery of the plaintiff, during which he was asked 2,669 questions. Considerable steps were taken by the parties in an effort to prove or disprove the plaintiff’s claim that he had suffered a mild traumatic brain injury during the accident. Most, if not all, of the expert evidence was focused on whether the plaintiff sustained a mild traumatic brain injury as a result of a relatively minor rear‑end impact during the accident.

[11]         In addition, there were several pre‑trial applications, most of which were of ordinary difficulty, but one involved the plaintiff’s successful motion to strike the defendants’ jury notice on the basis that the case had become complex and would be too lengthy for a jury to retain the evidence. This application was the subject of two hearings in the Court of Appeal.

[12]         In my view, this action was plainly one of more‑than‑ordinary difficulty. The plaintiff is entitled to an award of costs at Scale C.

 


ICBC’s Refusal To Negotiate Without Litigation Triggers Costs Award

December 9th, 2013

Reasons for judgement were released last week by the BC Court of Appeal ordering ICBC to pay costs after the settlement of a matter following trial.

In last week’s case (Krohn v. Weidner) the Plaintiff was injured in a collision and sued for damages.  Following trial the Plaintiff ” immediately identified some areas of concern” and tried discussing these with ICBC.  ICBC refused to address these issues stating that “no discussions concerning the amount of the judgment without an appeal first being filed.

The Plaintiff appealed and the parties eventually settled the outstanding issues.  The Plaintiff sought costs but ICBC refused to agree to these arguing each party should bear their own costs of the appeal.  The BC Court of Appeal ultimately ordered that ICBC bear the costs of the appeal and in reaching this conclusion provided the following reasons:

[5]           The appellant seeks costs of the appeal. The respondent, on the costs question, says that this is a case for an order that each party bear their own costs, consistent with Olney v. Rainville, 2010 BCCA 155, because this is a case, says the respondent, of divided success.

[6]           From what we have been told, it is apparent that the only route for the appellant to recovery of the undisputed disbursements as special damages was by pursuing this appeal. Accordingly, in our view, this is not a case that justifies departing from this Court’s usual rule that the party successful on an appeal recover his or her costs.


When Does An Award of $20,000 = A Significant Debt

April 22nd, 2013

No, this is not a trick question.  When can a judge awarding you $20,000 leave you in ‘significant’ debt?  The answer is when you fail to beat a formal offer at trial and have ‘loser pays’ costs assessed you.  I’ve discussed this reality previously and it was demonstrated yet again in reasons for judgement released last week by the BC Supreme Court, Vancouver Registry.

In last week’s case (Gonzales v. Voskakis) the Plaintiff was injured in a 2008 collison.  Prior to trial ICBC provided a formal settlement offer of $69,000.  The Plaintiff rejected this and proceeded to have a 12 day trial where she sought in excess of $385,000.  The claim was largely unsuccessful with the trial judge awarding just over $20,000 in damages.  ICBC asked that the Plaintiff be stripped of post offer costs and that the Defendant be awarded post offer costs and disbrsements.  The Plaintiff argued that such a result would “negate her entire judgement and leave her significantly in debt“.   Madam Justice Fitzpatrick noted that the underlying “behaviour modification objective” of the Rules of Court override any sympathy to the Plaintiff and levied substantial costs consequences.

The decision is also worth reviewing for the discussion of whether a post offer costs award to a Defendant can include disbursements.  The Plaintiff argued the Rules don’t contemplate this but the Court disagreed. In finding disbursements were also encompassed in the Rule Madam Justice Fitzpatrick provided the following reasons:

[65]         Rule 9-1(5) is headed “Cost options”. It is clearly intended to guide the court in deciding what costs award is just. Nevertheless, I do not see that subcategory (d) was intended to limit the discretion of the court to award a defendant’s disbursements in all cases when rewarding a defendant for making a reasonable offer. In many cases, disbursements are significant. In fact, the driving force behind an offer to settle may be the desire to avoid having to pay those disbursements. To limit the discretion of the court in awarding disbursements would defeat the clear intention of the Rule.

[66]         Although Brown J. came to another conclusion in Moore relating to double disbursements under Rule 9-1(5)(b), it appears that Kendall and Skidmore were not in front of her at that time. Therefore, in applying the principles set out in Re Hansard Spruce Mills Ltd., [1954] 4 D.L.R. 590, I do not consider that I am bound by her reasoning.

[67]         I acknowledge that the wording of Rule 9-1(5), in its reference to “disbursements” in subcategory (a) without an accompanying reference to “disbursements” in subcategory (d), is awkward and confounding. In my view, however, the fundamental purpose of the Rule — which, as stated by the Court of Appeal in Kendall and Skidmore, is to compensate for all “costs”, including disbursements — has not changed. One can only hope for some clarity on this issue by possible amendments to Rule 9-1(5).

[68]         In the meantime, I conclude that I have the discretion under Rule 9-1(5)(d) to award the defendant his costs, including disbursements.

[69]         I award such costs, which will include disbursements, in favour of Mr. Voskakis for the period from January 25, 2012 until February 29, 2012.


Costs Ordered To Be Paid To Insured Defendant; Not Insurer

January 22nd, 2013

When an ICBC insured Defendant is awarded costs following successfully defeating a BC Supreme Court lawsuit, do the costs get paid to the litigant or to the insurer?  To date there are contradictory authorities addressing this (you can click here to read a case awarding costs to the party and here for a case awarding them to ICBC).

Adding to the uncertainty, reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, indicating that the personal defendant gets the benefit of the costs payment.

In this week’s case (Nadeau v. Okanagan Urban Youth & Cultural Association) the Plaintiff was injured when struck by a vehicle.  He sued a personal defendant arguing he was the driver and also ICBC arguing that they were liable in the event that the personal defendant was not the driver.  The Claim against the personal driver was ultimately dismissed and the claim against ICBC succeeded.

The Defendant was awarded costs, however, Mr. Justice Powers found that a ICBC should be responsible for payment of the costs to the  personal Defendants.  In doing so the Court provided the following reasons:

[135]     . I order that the plaintiff recover 85 percent of his costs from the defendant, ICBC, at Scale B. I also order that the plaintiff recover the costs he is required to pay to Mr. Usseni and James Mugambi and James Kibigi from the defendant, ICBC. I am satisfied that this is one of those cases which fall within Rule 14-1(8) of the Civil Rules, where the plaintiff should recover the costs it pays to those defendants as a disbursement in its bill of costs against the defendant, ICBC.

[136]     The central issue in this proceeding on liability was which vehicle struck the plaintiff and who was operating that vehicle. If it was not the vehicle owned by Ms. Mutanda and driven by Mr. Usseni, then it would be a vehicle operated by an unidentified driver. The only question with regard to liability of the defendant, ICBC, for the unidentified driver, was whether the accident occurred on a highway so that s. 24 of the Act applied. Of course, the extent of the negligence of the operator and of Mr. Nadeau were also in issue, but those were in issue in any event.

[137]     In this case, not only was it reasonable for the plaintiff to bring its action against Mr. Usseni and Ms. Mutanda, James Kibigi and James Mugambi, as well as ICBC pursuant to s. 24 of the Act, it was the only course available to the plaintiff. There were real and legitimate issues of fact as well as issues of law that could not be resolved without a proper trial. The cause of action against each defendant was the same. The only issue was which defendant was liable depending on findings of fact.

[138]     In my opinion, it would be unfair to require the plaintiff to pay the costs of Mr. Usseni, Ms. Mutanda, James Kibigi and James Mugambi, without the ability to recover those costs from the unknown driver, or in this case, ICBC, pursuant to their liability under s. 24 of the Act.


Double Costs Awarded to Plaintiff After Besting Formal Settlement Offer

August 17th, 2012

Reasons for judgement were released recently by the BC Supreme Court, New Westminster Registry, addressing costs consequences following a trial where a Plaintiff bested his formal settlement offer.

In the recent case (Delgiglio v. British Columbia (Public Safety and Solicitor General)) the Plaintiff was injured after a RCMP officer ran a red light resulting in a collision.  The officer was found negligent at trial and damages of just over $330,000 were assessed.

Prior to trial the Plaintiff provided a formal settlement offer of $175,000.  The Plaintiff sought double costs for besting the offer.  In finding it appropriate to award double costs Madam Justice Gropper provided the following reasons:

Consideration of the factors

Was the offer one that ought reasonably to have been accepted?

[6] At the time the offer was made, the parties were approximately two weeks to trial. They had exchanged all the documents, the examinations for discoveries were complete and all the medical reports were exchanged.

[7] The defendants’ response is that the case reflected complex causation issues involving indivisible injuries.

[8] I consider this factor to favour the plaintiff’s position. While causation was a significant issue, it was addressed by the plaintiff’s physicians in their medical legal reports. The defendants did not tender any medical legal reports. The defendants had the plaintiff’s medical legal reports at the time the offer was made and was therefore in a position to evaluate the offer in spite of its consistent position in respect of causation.

Relationship of Offer and Judgment

[9] The plaintiff asserts that the offer of November 15, 2011 contained a meaningful element of compromise. He also argues that the assessment of damages significantly exceeded the compromise of settlement which the plaintiff offered two weeks before the trial. The defendants state no position in respect of this factor. This factor supports the plaintiff’s position.

Relative financial circumstances

[10] This factor is self evident: the plaintiff is an individual and the defendants have significant resources available. This factor supports the plaintiff’s position.

Other factors

[11] The plaintiff raises the defendants’ contact, particularly in regard to the question of liability.

[12] While I have found that the defendants were entirely liable for the accident, I do not consider that this constitutes a basis for awarding double costs to the plaintiff.

[13] Based upon the application of the factors referred to in Rule 9-1(6), I find that the plaintiff is entitled to his costs at Scale B up to November 14, 2011, and double costs thereafter. The plaintiff is entitled to his assessable disbursements. The double costs rule does not apply to disbursements.


More on the Reality of Insurance and Costs Consequences Following Trial

March 20th, 2012

Update March 21, 2014 – the Trial Judgement with respect to the relevance of insurance and costs was upheld today by the BC Court of Appeal

_____________________________________________________

In 2010 the BC Court of Appeal confirmed that Judges can look at insurance when considering the “financial circumstances” of litigants when addressing costs consequences following trials where a formal settlement offer was made.  Further reasons were released last week by the BC Supreme Court, Victoria Registry, confirming that costs consequences should not be applied with the ‘fiction‘ of ignoring insurance.

In last week’s case (Meghji v. Leethe Plaintiff suffered brain trauma after being struck by a motorist while walking in a marked cross-walk in 2003. At trial the motorist was found 90% at fault for the crash with the Ministry of Transportation shouldering the remaining 10% for designing the intersection with inadequate lighting.

Prior to trial the Plaintiff offered to settle for $750,000.  Neither Defendant accepted.  Damages at trial were assessed at just over $1.1 Million with the Defendants being jointly and severally liable.  The Plaintiff sought and was awarded double costs from the time of her offer onward.  In doing so Mr. Justice Johnston provided the following useful reasons addressing the reality of insurance and the risks of joint and several liability:

[33]Also relevant to consider is the fact that a well-funded party, such as MoTH,  faces higher risk with joint liability when other potentially liable parties have less means or no means with which to satisfy a possible judgment. In such circumstances, the well-heeled party may end up paying more than its proportionate share to the plaintiff if or when the impecunious party exhausts its ability to pay.

[34]This risk is balanced by the potential that the plaintiff might be held partly to blame for her losses, which would confine the well-funded party’s liability to its proportionate share of the loss through several liability: Leischner (Next friend of) v. West Kootenay Power, [1982] B.C.J. No. 1641…

[40]Quite apart from the fact that I am bound by the decision in Smith v. Tedford, its reasoning eliminates one fiction that ought not to complicate proceedings before a judge alone. That fiction is that there is no plan of universal compulsory automobile insurance in effect in British Columbia, mandated by statute, where the details of the coverage available are found in statute and regulation. If judges and others are presumed to know the law, there is little sense in requiring that judges ignore what the law provides when dealing with costs.


More on Rule 15 and Pre Trial Costs Assessments

February 23rd, 2012

Last year Master Baker released reasons for judgement assessing pre-trial settlement costs of a Rule 15 lawsuit at $6,500.  Today reasons for judgement were released upholding this analysis finding no error was made in such an assessment.

In today’s case (Gill v. Widjaja) Mr. Justice Harvey provided the following reasons upholding the Master’s decision:

[47] I turn now to the matter of the tariff fees allowed by Master Baker of the $6,500 in costs.

[48] Rule 15-1(15) reads:

(15) Unless the court otherwise orders or the parties consent, and subject to Rule 14-1(10), the amount of costs, exclusive of disbursements, to which a party to a fast track action is entitled is as follows:

(a)  if the time spent on the hearing of the trial is one day or less, $8,000;

(b) if the time spent on the hearing of the trial is 2 days or less but more than one day, $9 500;

(c) if the time spent on the hearing of the trial is more than 2 days, $11 000.

[49] The Rule, as written, gives the registrar wide discretion in determining the appropriate tariff amount.  Master Baker was aware of the steps taken in the litigation and the date of settlement relative to the trial date.

[50] Having regard to the aforementioned test that I must apply, I am not of the view that an error in principle has been demonstrated nor do I find that the master was clearly wrong in his determination that the appropriate cost of tariff amount was $6,500.

[51] The express purpose of Rule 15-1 is to streamline the process both for trial and, presumably, taxation of costs.  Parsing out the details in each action where the amounts do not apply is not, in my view, the proper course.  Indeed, were it, in this action there was a settlement conference which no doubt necessitated some significant preparation, much like trial preparation, and, as well, a trial management conference.  Each of those events resulted in discussions leading to the settlement of this matter.

[52] In those circumstances I find no error in principle such as to interfere with the finding of the master.


Plaintiff Stripped of Costs for Failing to "Justify His Choice of Forum"

December 30th, 2011

As previously discussed, the default position when a Plaintiff is awarded less than $25,000 following a Supreme Court trial is that they are not entitled to costs unless they show “sufficient reason” for suing in that forum.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing this and stripping a Plaintiff of costs who failed to justify his choice of forum.

In this week’s case (Quartey-Harrison v. Klusiewich) the Plaintiff was injured in a motor vehicle collision and following trial was awarded just over $18,000 in damages plus costs “if no submissions (respecting costs) have been received“.

Following this the Defendant provided written submissions arguing the Plaintiff should be deprived of costs because the claim could have been advanced in Provincial Court.  The Plaintiff did not respond to this submission.  Madam Justice Baker stripped the Plaintiff of his costs finding the onus was on him to justify his choice of forum.  The Court provided the following reasons:

[6] The burden is on the plaintiff to justify his choice of forum.  The court is to consider the circumstances at the time the action was commenced.

[7] In this case, Mr. Quartey-Harrison has made no submissions on costs and has offered no evidence on the issue of “sufficient reason” for bringing the proceeding in the Supreme Court.  In the circumstances, I do not think that I should speculate.

[8] In my view, the evidence at trial made it plain and obvious that no award for past or future loss of income or the capacity to earn income, was warranted, and that the mild whiplash type injury suffered by Mr. Quartey-Harrison was unlikely to result in an award in excess of the $25,000 monetary limit in Small Claims Court.

[9] I have carefully considered the submissions made by the defendants in respect of the defendants’ settlement offer but have concluded that Mr. Quartey-Harrison’s right to recover disbursements should not be nullified by the offer.

[10] In summary, each party shall bear its own costs, but the plaintiff is entitled to recover his disbursements from the defendants.