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 ‘Mr. Justice Masuhara’

Motorist Found Fully At Fault For Clipping Cyclist While Attempting to Pass

December 4th, 2017

Reasons for judgement were published this week by the BC Supreme Court, Victoria Registry, assessing fault for a collision involving a cyclist and a motorist.

In this week’s case (McGavin v. Talbot) the Plaintiff had merged onto the roadway where a bike lane ended.  Shortly thereafter the Defendant, proceeding in the same direction of travel, clipped the Plaintiff’s bike while a vehicle attempting to pass causing him to lose control and crash.  The motorist denied fault.  Mr. Justice Masuhara found fault rested fully with the motorist in these circumstances and provided the following reasons:

[20]         I find that Mr. McGavin had merged on the roadway at the end of the bike lane.  Mr. McGavin estimates he was riding at about 20-25 kmph which I accept.  I also find based on the testimony of Ms. Talbot, that Mr. McGavin was ahead of the Mr. Talbot’s pickup when the bike lane ended.  In my view, Mr. McGavin had the dominant position on the roadway beyond the end of the bike lane, and Mr. Talbot passed Mr. McGavin when there was not a safe distance between his pickup and Mr. McGavin to do so.  Mr. Talbot did not pass at a safe distance. 

[21]         I find the passing occurred before the X in the lane and before the start of guard rails for the Colquitz Bridge (Exhibit 1, Tab 4) and that the rear of the pickup driven by Mr. Talbot struck or clipped the handle bar of the bicycle ridden by the plaintiff causing the plaintiff to fall at about the start of the guard rails by the Colquitz Bridge. 

[22]         As a result, it is my determination that Mr. Talbot is entirely at fault for Mr. McGavin’s fall. 

[23]         My finding here is made on the bases that:

(a)            A cyclist has the same rights and duties of a driver of a vehicle pursuant to s. 183(1) of the Motor Vehicle Act, R.S.B.C. 1996, s. 318;

(b)            A driver of a vehicle overtaking another vehicle must cause its vehicle to pass to the left of the other vehicle at a safe distance and must not cause or permit the vehicle to return to the right side of the highway until safely clear of the overtaken vehicle pursuant to s. 157(1); and 

(c)             A driver of a vehicle must drive with due care and attention and must have reasonable consideration for other drivers pursuant to s. 144.


$80,000 Non-Pecuniary Assessment for Chronic Myofascial Pain and TOS

February 2nd, 2017

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic myofascial pain and thoracic outlet syndrome following a collision.

In today’s case (Kodelja v. Johal) the Plaintiff was involved in a 2012 collision that the Defendant accepted responsibility for.  The Plaintiff suffered chronic injuries which remained symptomatic by the time of trial and were partially limiting but not disabling.  In assessing non-pecuniary damages at $80,000 Mr. Justice Masuhara provided the following reasons:

[92]         Therefore, my summary of findings regarding the plaintiff’s injuries is: 

(a)            The Accident caused the plaintiff’s chronic myofascial pain syndrome and post traumatic thoracic outlet syndrome.  The pain is in her left neck, left shoulder and upper back.  She also has paresthesia in her left arm as a result of the thoracic outlet syndrome. 

(b)            The Accident caused the plaintiff to suffer headaches which continue.  The headache pain ranges from dull, to mild to severe.  She gets dull or mild headaches every other day and manages without medication.  She has more significant headaches once every two weeks.  They can be managed with Tylenol and Advil. 

(c)            The major areas of the pain are in her left neck, shoulder and upper back.  The right hip and groin area pain is minor and was an aggravation of a prior condition. 

(d)            The pain in her neck, shoulder and back ranges from mild to moderate. 

(e)            Her overall condition since the Accident has improved at least 50%. 

(f)              The numbness and tingling in the plaintiff’s left arm is intermittent and infrequent, the last occurrence was, at least over a year ago.  It is not disabling. 

(g)            The plaintiff has normal range of motion of the left shoulder.  Her right shoulder movements are full.  She has full flexion and extension in her cervical spine. 

(h)            The plaintiff has some physical limitations, however, she is able to carry out normal day-to-day activities including teaching, with the work support and prep time available to her, and home cleaning and cooking. 

(i)              The plaintiff is functional for basic handling, reaching, balance, stooping, lifting and carrying for amounts tested, sitting, standing and walking.  She is able to do housecleaning though has difficulty with heavier activities for which she requires some assistance. 

(j)              She is able to participate in social and recreational activities such as camping, holiday travel, and sailing, but is restricted from participation in more rigorous recreational activities such as running and swimming.  But for the demands of her work on her time, she is able to maintain a social life. 

(k)            She is able to perform her teaching duties, including leading or assisting in after school student extra-curricular activities. 

 

[102]     The ranges the parties rely on are not too far apart.  The assessment in this case, while guided by other cases, is tailored to the specifics of the present case.  My review of the cases handed up and my findings lead me to assess damages under this head at $80,000. 


$110,000 Non-Pecuniary Assessment for Fractured Ribs, Knee Injury and Chronic Pain

July 7th, 2015

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a host of injuries resulting from a collision.\

In the recent case (Grewal v. Naumann) the Plaintiff was involved in a 2007 T Bone collision.  The collision was significant and resulted in 3 broken ribs, a knee injury requiring surgical intervention and a variety of soft tissue injuries resulting in some chronic symptoms.  In assessing non-pecuniary damages at $110,000 Mr. Justice Masuhara provided the following reasons:

[120]     My findings of the injuries suffered by the plaintiff from the Accident are:

(a)            three fractured ribs two of which were comminuted, and internal injuries which physically healed by January 2008;

(b)            chondromalacia patella and a small tear to the anterior horn of medial meniscus; which was repaired by surgery; there is some risk of arthritic degeneration but only slightly greater than the general population.  The range of motion in his right knee has always been normal; though at times there has been the presence of fluid buildup which has never been assessed as more than minimal.

(c)            soft tissue injuries to neck, right shoulder, lower back, right wrist and right ankle.

(d)            chronic pain.  While I find that there is chronicity to some of Mr. Grewal’s reported pain.  I find that the pain is at the low end of the range. 

(e)            the recurrence of a major depression which is now in remission.  Mr. Grewal had a pre-Accident history of depression, including major depression and that the Accident caused him to experience significant depression and anxiety.  The Accident related depression arose in around June 2009 and became a major depression in April 2011, gradual improvement was occurring which by February 2013 no depression was detected and was deemed to be in remission by December 2013 where Mr. Grewal was found to be in a “happy stable state”.  Mr. Grewal’s sleep was said to be “good” by September 2012.  He has remained in remission since and that reducing his medications is a potential.  Mr. Grewal however is at higher risk to suffer from recurrence of anxiety and depression as a result of the Accident. 

[132]     Based on my findings of Mr. Grewal’s injuries from the Accident including the likelihood of future effects, my view is that the defence cases cover injuries which are not as extensive as the plaintiff’s and that the injuries approximate closer to the cases handed up by the plaintiff.  However, his depression continued for some time before going into remission; the knee injury and resulting surgery, and ongoing chronic pain (though at the low end) are factors which require added recognition. 

[133]     I assess damages at $110,000. 


Non-Disclosed Medical Report Leads to Adverse Inference in Cervical Radiculopathy Injury Claim

May 10th, 2013

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, commenting on “the failure of the defence” to produce a medical report they agreed to exchange in the course of an injury lawsuit.

In this week’s case (Chekoy Sr. v. Hall) the Plaintiff was involved in a 2007 collision.  Fault was admitted by the Defendant   The Plaintiff suffered a cervical radiculopathy as a result of the crash and had non-pecuniary damages assessed at $75,000.  In the course of the lawsuit the Plaintiff agreed to attend an independent medical exam requested by the Defendant in exchange for a copy of the resulting report.  The report was never produced.  In reaching his assessment of the evidence and this development Mr. Justice Masuhara provided the following comments:

[67]         Though the plaintiff attended an independent medical examination requested by the defence.  The defence did not adduce any medical evidence challenging the plaintiff’s medical evidence.  Mr. Gertsoyg produced a letter which stated that his client would attend an independent medical exam requested by the defence in exchange for a copy of the resulting report.  Ms. Tonge wrote back agreeing to do so.  For some reason, a copy was not provided to Mr. Gertsoyg.  During the course of the trial, Ms. Tonge was requested by Mr. Gertsoyg to produce the report.  Ms. Tonge refused and when asked by Mr. Gertsoyg in court to provide the report she stated that she did not have with her.  She did not offer to get and provide it. ..

[85]         In any event, the medical opinions all support objectively the fact that Mr. Chekoy has symptoms from cervical radiculopathy.  As noted earlier the defence did not tender any medical evidence though it obtained an independent medical examination and report of the plaintiff.  The failure of defence counsel to produce the medical report which counsel had agreed to provide to plaintiff’s counsel, without an adequate explanation, allows for an adverse inference to be drawn in this regard.  The defence’s theory that the plaintiff’s neurologic problems relate to physiotherapy treatments, chiropractic treatments, or from the plaintiff lifting a tool box on the back of a pickup has not been established; I note Dr. Golin’s did not accept that theory.  While the defence raised the question of the delay in symptoms, I accept the medical evidence that there is considerable variability in symptom onset.

[86]         On balancing the totality of the evidence including the failure of the defence to produce its independent medical report, I find that the Accident is the cause of the plaintiff’s cervical radiculopathy and not from the natural progression of the plaintiff’s pre-existing degenerative disk disease, subsequent treatments, or other events.


Left Hand Turner Found 100% At Fault for Intersection Crash on Fresh Amber

June 20th, 2012

Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, addressing fault for an intersection crash involving a left hand turning vehicle and a through driver.

In the recent case (Andrews v. Mainster) the parties were driving in opposite direction on 16th Avenue in Vancouver, BC.  Ms. Andrews attempted to drive through the intersection. Of 16th and Fir.  The light turned amber as Ms. Andrews was about one car length away.  At the same time the motorist in the opposite lane of travel, who was already committed in the in the intersection, attempted to turn left resulting in collision.  Both parties sued each other.  In finding the turning motorist fully at fault Mr. Justice Masuhara provided the following reasons:

[30] It was dry and sunny at the time of the accident. Ms. Mainster had a clear and unobstructed view up West 16th to Granville Street. Ms. Andrews was not driving at an excessive speed on West 16th. Rather, she was driving at a normal speed approximately 45 km/h.

[31] I find that Ms. Mainster had proceeded into the intersection beyond the westside crosswalk and was waiting for traffic to pass through.

[32] More likely than not, Ms. Andrews was talking to Mr. Priolo just prior to the accident and that Ms. Andrews’ head was turned somewhat towards Mr. Priolo.

[33] I also find that Ms. Mainster turned left into the lane of oncoming traffic at the time the light for traffic on West 16th turned yellow. I also find at this same time Ms. Andrews’ car was within a car length of the intersection.  Ms. Andrews was the dominant driver relative to Ms. Mainster.

[34] I find that Ms. Andrews’ vehicle constituted an “immediate hazard”. I find that Ms. Mainster did not “yield” and that she did not become the dominant driver.

[35] I find that the collision occurred in the intersection closer to the crosswalk on the west side of the intersection than in the middle of the intersection.

[36] I note that Ms. Mainster agreed that if she would have looked eastward that she should have been able to see the red Mazda and could not explain why she did not see it. Ms. Mainster said that it was just a brief moment between the time the front of her car had just moved to turn and the collision. The first time she saw the Mazda was at the time of the collision. The theory that Ms. Andrews must have been travelling excessively and if seen initially would have been at the eastern end of West 16th (closer to Granville) has not been made out. As a result, Ms. Mainster in not seeing the Andrews’ car was not paying proper attention to oncoming traffic.  She did not meet the standard of care of a driver in her circumstances.

[37] Though, Ms. Andrews had her head somewhat turned toward Mr. Priolo in conversation as she was driving towards the intersection just before the collision, I do not find that she had taken her eyes off the road in front of her. I also do not find that Ms. Andrews had a duty to anticipate that Ms. Mainster would move into her lane when she did.  In any event, the proximity of the two vehicles was such that when Ms. Mainster moved into the lane of oncoming traffic that Ms. Andrews would have been unable to take sufficient action to avoid the collision.

[38] In the circumstances, I find Ms. Mainster to be entirely liable for the accident.


The Point of No Return: More on ICBC Settlements, Finality And Consent

March 5th, 2012

As previously discussed (you can click here to read all my archived posts on this topic), a binding ICBC settlement can be reached even before the ‘full and final release’ is signed.  An oral contract can be the point of no return.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, demonstrating that once a lawyer accepts a settlement offer on behalf of a client it likely becomes too late for the client to change their mind.

In last week’s case (Truong v. Marples) the Plaintiff was injured in a motor vehicle collision.  She hired a lawyer to advance her personal injury claim.  In the course of the lawsuit ICBC’s and the Plaintiff’s lawyer agreed to a $10,000 settlement.

The Plaintiff agreed her lawyer had authority to accept the offer but argued the deal should not be binding as the offer was ambiguous as it should not have disposed of her no-fault benefits claim with ICBC.  The Court disagreed finding that a binding settlement was reached.  In doing so the Court provided the following reasons:

[20] In terms of ambiguity, I find that there was no ambiguity in the settlement.  The settlement was agreed to between Mr. Grewal and Mr. Shane and they both state that there was no ambiguity and agree on what the deal was.  Their evidence, which was not shaken at the hearing, was that they reached a settlement of all issues, including those regarding tort and Part 7 benefits.

[21] Mr. Shane and Mr. Grewal had a history of working on the opposite sides of files.  It is apparent that the two have developed experience with each other.  Mr. Shane’s testimony also indicates that he has a direct working relationship with the Burnaby litigation department of ICBC, and that an “all in” settlement always meant that it included the tort claim and Part 7 benefits.  He displayed a sound understanding of Part 7 benefits and how they interact with a person’s private health insurance.  He stated that if a settlement did not include Part 7 benefits it was his practice to note that.  I accept his evidence on this point.

[22] The Release document sent by ICBC to Mr. Shane supports the settlement asserted by Mr. Grewal and Mr. Shane.  The document states that it is a release of all defendants, and ICBC under Part 7 of the Insurance (Vehicle) Regulation.  Mr. Shane reviewed this document, obviously found it satisfactory, and passed it on to Ms. Truong for her execution.

[23] I also accept Mr. Shane’s evidence that he always makes sure that his clients understand that the figures being proposed to settle include all potential entitlements they have from their claim which include the tort and Part 7 entitlements.  I also accept that he advised Ms. Truong, as per his practice, that prior to confirming any settlement figure with ICBC, that she would need to sign a Release, that this was not optional, or is something that she could refuse to do, and that their claim would be over.

[24] I am not persuaded that the Sharma case is particularly applicable here, given that both counsel involved in the settlement in the instant case agree as to what was settled

[25] Turning then to the question of whether the settlement was unjust and should not be sanctioned.  I have considered the various factors identified in the Pastoor case.  I am not persuaded that the circumstances justify intervention by the court.  Ms. Truong was represented by experienced counsel.  Mr. Shane provided her his opinion based on the information that he had at the time.  He knew that Ms. Truong had private health insurance, he formed a considered opinion that she had little chance of success on liability and the costs of pursuing that aspect, he had a sound understanding of Part 7 benefits, and he discussed that with Ms. Truong.  There was little evidence adduced as to what it would be in the case of Ms. Truong.  Mr. Shane in this hearing stated that it could be thousands of dollars.  Finally, he also received instructions to accept the offer.

[26] I am of the view that interfering with this settlement would do greater harm to encouraging settlement.  It would undermine the role of counsel in relation to a client, in relation to opposing counsel, and in the litigation process.

[27] The issues raised by Ms. Truong are, in my view, related to her relationship with Mr. Shane and not with the defendant.  Her remedy does not lie in having the settlement overturned.

I repeat my previous words of caution about settlement instructions.  If a lawyer enters into a binding settlement without a client’s consent the client’s remedy is against their lawyer as opposed to the Defendant in the ICBC Claim.  In the best interests of everyone involved it is vital that lawyers do not accept an ICBC settlement offer unless they have clear instructions from their clients to do so.  A best practice when giving settlement instructions to a lawyer is to do so in writing to help avoid potential complications.


$40,000 Non-Pecuniary Assessment for Aggravation of Fibromyalgia; Rule 15 Soft Cap Exceeded

October 26th, 2011

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for an aggravation of pre-existing fibromyalgia.

In this week’s case (Paradis v. Gill) the Plaintiff was injured in a 2007 collision.  Fault was admitted.  Despite expressing some “reservations in accepting the entirety of the evidence put forth in the plaintiff’s case” Mr. Justice Masuhara accepted that the collision caused an aggravation of pre-existing fibromyalgia which was on-going by the time of trial.  In assessing non-pecuniary damages at $40,000 the Court provided the following reasons:

[73] Applying the principles of causation as set out in Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333; Athey v. Leonati, [1996] 3 S.C.R. 458; and most recently in Farrant v. Laktin, 2011 BCCA 336, as well as recognizing the comment that courts should exercise caution when there is little objective evidence of continuing complaints of pain persisting beyond what the defence asserts is the normal recovery period, I find that the Accident aggravated Ms. Paradis’ condition of fibromyalgia.  My view is that Ms. Paradis’ pain is predominantly in the mild to moderate range (though it can increase) and relates to her lower back; that she suffered from back and neck pain as well as headaches prior to the Accident but not as great; that she is able to stand far longer than she says; that she has the capacity to lift more than she asserts; and can engage in more activities than the physical capacity concludes.  The plaintiff also has full range of motion at her neck, shoulders, elbows, forearms, wrists, lower back, hips, knees, ankles and feet.  A significant part of her physical restrictions are not substantially related to aggravation from the Accident but rather to the unrepaired injury to her left knee, the osteoarthritis found in her knees, as well as her weight.  However, I find that she has suffered some loss of capacity…

[83] Ms. Paradis had a history of back, neck and knee pain, and headaches prior to the Accident.  Also, the medical evidence indicates that Ms. Paradis has full range of motion in all areas of her body, from her neck to her feet.

[84] The authorities referred to by the plaintiff in support of its position on quantum largely do not deal with persons with a pre-existing condition of pain comparable to the plaintiff.  The cases also deal with persons who enjoyed activities that were more significantly impacted by their injuries than in the instant case.  In my view, the injuries in the cases submitted by the defendant are somewhat more comparable to the plaintiff.  Also, I accept that Ms. Paradis’ level of pain and disability can be significantly controlled with proper management.  The defence’s position that some recognition for the plaintiff not taking reasonable steps to reduce her weight is addressed later under mitigation.

[85] In all of the circumstances, I assess general damages as $40,000.

This case also appears to be one of the first cases to be prosecuted under the Fast Track with damages exceeding the soft cap.  Despite the cap set out in Rule 15-1(1)(a), Rule 15-1(3) states that “nothing in this rule prevents a court from awarding damages to a plaintiff in a fast track action for an amount in excess of  $100,000“.  This week’s case was apparently prosecuted under the fast track (as is evidenced by the Court’s costs award set out in paragraph 119) and had global damages of $116,238 assessed.


$28,000 Non-Pecuniary Damages Assessment for Patellofemoral Pain

June 20th, 2011

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for an accident related knee injury.

In this week’s case (Battagliola v. Wal-Mart Canada Corp.) the Plaintiff was shopping in Wal-Mart in 2005 when a metal shelf struck her right knee.  Wal-Mart accepted that they were liable for the incident leaving only quantum of damages (value of the claim) at issue.

The Plaintiff suffered pain and discomfort in her knee following the incident and was diagnosed with patellofemoral pain (knee joint pain).  The symptoms lasted up until the time of trial but were expected to “slowly resolve over time“.

The Court accepted the injury was caused by the incident although expressed concerns that “the negative impacts are not quite as debilitating as asserted” and further that the Plaintiff’s “current limitations are not as severe as her personal account suggests“.  Non-Pecuniary damages (money for pain and suffering and loss of enjoyment of life) were assessed at $28,000.  In reaching this assessment Mr. Justice Masuhara provided the following reasons:

[19] Dr. Pisesky opined in his report that Ms. Battagliola suffers from patellofemoral syndrome of the right knee and that the pain associated was brought about directly by the contusion to her right knee on February 15, 2005….

[22] He opined that Ms. Battagliola “will likely have some degree of discomfort in [her right] leg and findings associated with this of patellofemoral irritation indefinitely.” …

[25] The report of Dr. White concluded that upon his examination, Ms. Battagliola “probably had a blow and bruise to the right patella area in the indeterminate past.”  Based on the information he had as of the date of his report, he stated that Ms. Battagliola’s knee injury “should slowly resolve over time but may take a while yet.”…

[33] In considering the circumstances of this case, the age of Ms. Battagliola; the period of time over which her condition has continued; the medical evidence of Dr. Pisesky that symptoms will continue on indefinitely but that they can be controlled to a certain extent by his recommendations and that there should be a noticeable benefit with orthotics; and my finding that her pain is not as debilitating as indicated in the plaintiff’s case, I assess non-pecuniary damages as $28,000.


Pain and Suffering Awards for Year Long Soft Tissue Injuries Discussed

April 27th, 2010

Reasons for judgement were released today addressing the value of non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for 2 plaintiffs who suffered soft tissue injuries in a 2006 BC car crash.  I summarize the Court’s key findings in my continued effort to grow this public data base of damage awards in BC injury claims

In today’s case (Morrison v. Peng) the Plaintiffs (husband and wife) were rear-ended by a vehicle driven by the Defendant.  Fault was admitted leaving the Court to value the Plaintiffs’ injury claims.  Both suffered soft tissue injuries which lasted approximately one year.  In assessing the Plaintiffs non-pecuniary damages at $9,000 and $18,000 respectively Mr. Justice Masuhara summarized the injuries as follows:

[23] Having considered the evidence, I am of the view that Mr. Morrison suffered soft tissue injuries to his neck and back which can be characterized as mild, and that his symptoms resolved within a year.  Given my assessment of Mr. Morrison and the facts, my view is that he was able to do more than what he stated…

[26] Recognizing that the aforementioned cases are for guidance and that each case is to be determined on its own unique circumstances, I find a fair and reasonable non-pecuniary award to be $9,000.

________________________________________________________________________

[42] Ms. Jabs’ condition is somewhat complicated by the several conditions that she has identified in the report.  Based on the foregoing medical opinion, I find that that she suffered soft tissue injuries to her neck, upper and lower back and that the symptoms she experienced resulting from the accident had a duration somewhat beyond one year of the accident.  Her chiropractic and massage treatments end at this point for about one year.  I would characterize her injuries as mild to moderate in severity. ..

[46] Recognizing that the aforementioned cases are for guidance and that each case is to be determined on its own unique circumstances, I find a fair and reasonable non-pecuniary award to be $18,000.

Feel free to visit the soft-tissue injury archives of this site to review other BC cases addressing non-pecuniary damages for soft tissue injuries.


More on Rule 37B and the Timing of Formal Settlement Offers, "All Inclusive" Offers Discussed

December 26th, 2009

One pattern that is becoming well developed under Rule 37B (the Rule dealing with Formal Settlement Offers in BC Supreme Court Lawsuits) is that of timing.  Caselaw seems to require that formal offers need to be available for acceptance for a reasonable period of time before triggering cost consequences under Rule 37B.  Reasons for judgement were released this week demonstrating this.

In this week’s case (Dodge v. Shaw Cablesystems [SBC) Ltd.) the Plaintiff sued for damages as a result of a slip and fall.  As a result of the fall the Plaintiff injured her knee.  Before trial the Defendant made a formal offer for $50,000 on an “all-in” basis (meaning inclusive of all damages, costs and disbursements).  This offer was made two working days before the start of trial.

After trial, the Jury decided that the Plaintiff and the Defendant were equally at fault for the fall an awarded a net sum of $20,000 for her injuries.  The Defendant then brought a motion for costs under Rule 37B.  Mr. Justice Masuhara refused to award the Defendant any costs because the offer was not left open for consideration for a reasonable period of time.  In coming to this conclusion Mr. Justice Masuhara stated as follows with respect to timing of formal offers under Rule 37B:

I conclude that the defendant’s offer was in effect from Wednesday, January 7, 2009 to Friday, January 9, 2009.

[14] A party requires a reasonable time within which to consider an offer and decide in the circumstances existing at the time of the offer whether it should be accepted or rejected:Coquitlam (City) v. Crawford, 2008 BCSC 1507. There is case law on Rule 37B that suggests that a reasonable amount of time to consider an offer is seven days. In Arnold, Butler J. cited Bailey when he stated at para. 22 that “[a] reasonable period of time to consider an offer to settle is seven days”. In Towson v. Bergman, 2009 BCSC 978 at para. 70, Gray J. stated that the seven day period “has been applied in the case law.” I do not, however, read these cases as laying down a rule of general application. In Wright v. Hohenacker, 2009 BCSC 996, for example, Fisher J. did not consider a “seven day rule” when determining whether an offer should have been reasonably accepted, stating that, in the circumstances of that case, the fact that the offer was made only four days before trial was not particularly significant. Suffice it to say that every case must be judged on its own facts. Imposition of an inflexible rule as to what is considered a reasonable amount of time risks returning to the rigid consequences of the old Rule 37 and fettering the wide discretion intended under Rule 37B.

[15] In this case, the plaintiff was only given two days to consider accepting the offer before it expired. Apart from pointing out that the offer was made after mediation and after delivery of the defendant’s expert reports, neither party has led any evidence surrounding the circumstances at the time the offer was made. It is known, however, that the plaintiff was a resident of Ontario at the time, whereas her counsel was resident in Abbotsford. While this alone is not determinative (the plaintiff has not led any evidence of her whereabouts at the time of the offer), when an offer to settle is received, counsel and client are required to make a careful appraisal of the merits, taking into account complex and subjective factors in appraising the eventual outcome of a trial, in this case, a jury trial. Complexity is increased where the plaintiff is asked to evaluate an “all-in” offer where, by the very nature of the offer, the actual amount offered in discharge of the action is not immediately apparent.

[16] Taking into account that analysing the “all-in offer” would have required breaking out the appropriate cost consequences, and that plaintiff and counsel undoubtedly had many other things that required their attention, two days was an unreasonable amount of time in which to properly analyze the offer. Even if the offer did beat the result, counsel for the plaintiff did not have enough time to reach this conclusion within the deadline set by the defendant…

[18] Since I have decided that it was unreasonable for the defendant to expect that the plaintiff would accept the offer within two days, the policy underlying Rule 37B, which is to encourage the settlement of disputes by rewarding the party who makes a reasonable offer and penalizing the party who declines to accept such an offer, is not engaged. Accordingly, as permitted by Rule 37B(4), I decline to consider the defendant’s offer to settle in exercising my discretion relating to costs.

Another interesting point in this decision was the Court’s discussion of “all-inclusive” offers under Rule 37B.  Under the now repealed Rule 37 such offers were not allowed and could not trigger costs consequences.  Mr. Justice Masuhara ruled that such a strict prohibition is not warranted under Rule 37B but parties should make such “all-in” offers at their own peril, Specifically the Court stated as follows:

24] Since the introduction of Rule 37B, there is no longer a complete code to dictate the cost consequences of an offer to settle. Rule 37B contemplates a summary procedure to determine costs. It offers broad discretion to the trial judge to determine cost consequences of a failure to settle. While the defendant is no longer automatically entitled to costs from the date of the offer if the offer is more favourable than the judgment, Rule 37B(5)(d) still states that the court may in such a case “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.” While I accept that the consequences of an uncertainty in the calculation of costs up to the date of the offer to settle are no longer as stringent, as under the old Rules, the court is still faced with difficulty in summarily determining the relationship between the offer and the costs in an “all-in” offer. Consequently, the potential for injustice still exists. Thus, under Rule 37B, it does not appear to me that the rationale for the rule in Helm is no longer of assistance. In my view the language of Rule 37B is broad and assumes that the trial judge in every case is in the best position to determine whether an “all-in” offer can be considered. Provided that the proper form of an offer to settle is adhered to, the court has under Rule 37B the discretion to take into account that offer to settle. Nonetheless, defendants who make an “all-in” offer do so at their own peril.

In my continued efforts to get prepared for the New BC Supreme Court Civil Rules I am cross referencing Civil Procedure cases that I discuss on this blog with the New Rules.  To this end  it is worth pointing out that Rule 37B will be replaced with Rule 9 under the New Rules. The new rule uses language that is almost identical to Rule 37B which should help cases such as this one retain their value as precedents.