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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

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Posts Tagged ‘Rule 9-1(6)(d)’

Plaintiff Stripped of $56,207 of Costs and Disbursements for Not Beating Formal Defense Offer at Trial

January 13th, 2016

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, highlighting the judicial flexibility and potential financial risks that come into play when a formal offer of settlement is not beat at trial.

In today’s case (Park v. Targonski) the Plaintiff was injured in a collision and sued for damages.  Prior to trial the Defendants made a formal offer of $321,407.  The Plaintiff declined this offer and proceeded to trial where she was awarded $302,643 after applicable statutory deductions.

The Defendants asked the Court to strip the Plaintiff of her post offer costs and disbursements of $56,207 and further to pay the Defendants’ post offer costs and disbursements of $63,769.

The Court found that the offer ought to have been accepted and that it was appropriate to strip the Plaintiff of her post offer costs and disbursements.  The Court noted, however, that awarding the Defendant their costs would create “an unduly punitive sanction”.  In reaching this conclusion Mr. Justice Fitch provided the following reasons:

[47]         Upon consideration of the above-noted factors, as well as the overall purpose of the rules respecting formal offers, I conclude that, pursuant to Rule 9-1(6)(a), the plaintiff shall have her costs at Scale B up to the date of the offer to settle, but not thereafter.  The costs sanction to the plaintiff arising from this order is significant.  She will be denied her costs and disbursements totaling $56,207 from the date of service of the offer to settle.

[48]         I have given close consideration to whether the defendants should be awarded all or a portion of their costs for steps taken in the proceeding after service of the offer to settle pursuant to Rule 9-1(6)(d).  Balancing the applicable considerations as best I can, I have determined not to make this order.  In my view, it is unnecessary to make this order to give effect to the purposes underlying the rule.  More importantly, and for the reasons already given, doing so in this case would visit upon the plaintiff an unduly punitive sanction – one that fails to give any weight:  (1) to the challenges associated with forecasting how a court might assess her loss of future earning capacity claim; and (2) to the plaintiff’s compromised ability to accurately evaluate her own situation.

[49]         The parties will bear their own costs arising out of this application.


Excessive Delay Strips Defendant of Double Costs Entitlement

May 9th, 2014

In what I believe is the first case addressing this factor, reasons for judgment were released today by the BC Supreme Court, Kelowna Registry, looking to the timeliness of  a costs application as a factor in deciding costs consequences following a trial with a formal settlement offer in place.

In this week’s case (Bay v. Pasieka) the Plaintiff was involved in a collision and sued the Defendant for damages.  The case had “frailties” and prior to trial the Defendant made a nominal formal settlement offer of $1.  The Plaintiff rejected this offer and proceeded to trial.  A jury dismissed the claim.  The Defendant sought double costs and Mr. Justice Butler would have awarded these but did not due to excessive delay in bringing the Defendant’s application.  In reaching this conclusion the Court provided the following reasons:

 [1]             On January 27, 2010, following a two-day trial, the action of the plaintiff, Laurie-Ann Bay, against the defendant, Todd Pasieka, was dismissed. I ordered that the issue of costs be adjourned with liberty to the parties to apply to the court if an agreement could not be reached. Three-and-a-half years after the trial, the defendant now applies for costs. The defendant seeks costs at Scale B and double costs from November 14, 2006, the date an offer to settle was made, to the present. The plaintiff says that each party should bear their own costs…

[30]         While some delay is understandable, the delay in this case far exceeded a reasonable limit. Excessive delay is, of course, contrary to the object of the Rules as set out in Rule 1-3(1): to secure “the just, speedy, and inexpensive determination of every proceeding on its merits.” By waiting so long to deal with the issue of costs, the defendant undoubtedly increased the cost of dealing with the issue for both parties and delayed the final resolution by years. It would be wrong to accept the delay without imposing any consequence on the defendant. It is in the interests of the court and of the parties to resolve disputes as soon as they arise to promote efficient use of court time. The inordinate delay in bringing this application is not acceptable.

[31]         In Xerox, Finch J. found that a party alleging prejudice has the evidentiary burden of showing that prejudice. While the evidence presented does not establish significant prejudice, the plaintiff has established that the defendant’s delay in pursuing a costs award caused her and her counsel difficulty in responding to the application in as fulsome a manner as she would have been able to had the defendant sought costs soon after trial. Similarly, it is much more difficult for the court to consider the costs claim so long after the trial has concluded.

[32]         I find that the defendant has not provided a suitable reason for the inordinate delay in bringing this application. The plaintiff has been prejudiced as a result of this delay and the court has been inconvenienced.

[33]         Without the delay in the application, I would have found that the defendant was entitled to double costs from the date of Mr. Pasieka’s examination for discovery. The plaintiff should have known from that time forward her claim was weak and should have accepted the offer. However, given the inordinate delay, I decline to make that order. Instead, I order that the defendant is entitled to costs at Scale B throughout.

 


No Costs Consequences Triggered By Late Defence Formal Offer in Infant Claim

March 13th, 2013

Update June 18, 2013 - Leave to Appeal the below decision was refused by the BC Court of Appeal

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Adding to the list of ‘other factors Courts can consider when deciding whether a formal settlement offer should trigger costs consequences following trial, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, considering the fact that an infant settlement would require Public Trustee approval.

In last week’s case (Nemoto v. Phagura) the Plaintiff was involved in a collision when she was 13.   One week before trial ICBC made a formal settlement offer which was $300 greater than the damages she was ultimately awarded at trial.  ICBC applied to strip the Plaintiff of her post trial costs and to be awarded theirs.  Mr. Justice Smith refused to do so noting that the offer was only 1% greater than the trial award, that there was no competing defence medical evidence to better define risk and lastly that the Public Trustee’s approval would be required which would result in an abandonment.  Addressing the last factor the Court provided the following reasons:

[10]         A further complication arose in this case from the fact the plaintiff was 17 years old at the time of trial. That means a settlement based on the formal offer would have required the consent of the Public Guardian and Trustee (“PGT”) pursuant to s. 40 (7) of the Infants Act, R.S.B.C. 1996, c.223. The absence of defence medical evidence may have made it more difficult for plaintiff’s counsel to persuade the PGT of the appropriateness of the settlement.

[11]          In any case, the PGT’s views could not likely have been obtained in the week between the date of the offer and the date of trial, requiring an adjournment of the trial. The plaintiff had to consider the delay that would have been involved in proceeding to trial at a later date in the event, however unlikely, the PGT was not prepared to consent.

[12]         In these circumstances, I cannot say that the offer ought reasonably to have been accepted and I decline to give effect to it in the matter of costs.


Defendant Stripped of Costs For Expert Witness Advocacy

March 11th, 2013

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, stripping Defendants of significant trial costs they otherwise would have been entitled to as a result of relying on an expert witness who crossed the line into advocacy.

In this week’s case (Jampolsky v. Shattler) the Plaintiff was involved in 4 collisions.  He alleged he sustained a traumatic brain injury and sought damages exceeding one million dollars at trial.  The Court rejected the brain injury claim and found that the Plaintiff sustained modest injuries awarding $15,000 in total damages.  Prior to trial ICBC made a formal offer of settlement of $125,000.   ICBC sought costs from the time of the offer onward. Mr. Justice Harvey held that normally such an order was appropriate but because of the Defendant’s expert witness’ evidence at trial which crossed into advocacy and further due to the Defendant lawyer’s conduct in the course of a mid-trial application, the Defendant should be stripped of their post offer costs.  In coming to this conclusion the Court provided the following reasons:

[72]         As  earlier observed, but for the matter of the conduct of defendants’ counsel in the application for withdrawal of the admission and my findings concerning the evidence of Dr. Rees, I would have made an order under Rule 9-5(d) awarding the defendants costs in respect of the proceeding after the date of delivery of the offer to settle.

[73]         The degree to which the evidence of Dr. Rees crossed the boundary from expert opinion into advocacy is a matter which rests at the feet of the defendants. He was their witness and the defendants assume responsibility for his conduct. The Rules require experts to certify that they will prepare their reports and provide testimony in accordance with their duty to assist the court and not assume the role of advocate:Jayetileke, supra.

[74]         In LeClair v. Mibrella Inc., 2011 BCSC 533, Voith J. reduced the amount of costs payable to a successful defendant by 50% to make clear to the defendant that its conduct, in certain respects, was improper. The rebuke in costs was to signal the court’s expectation that parties will expect in a manner that is consistent with the Rules of Court.

[75]         Here, similar to LeClair, I find that the conduct of the defendants, both through the actions of their counsel, Mr. Robinson, and in an expert called on their behalf, Dr. Rees, was sufficiently outside the boundaries of expected behaviour to warrant rebuke via a denial of costs to which the defendants would otherwise be entitled.

[76]         In the circumstances, despite the September Offer and the defendants’ success on the issue of whether the plaintiff suffered an MTBI as a result of any of the four accidents, it is appropriate to deny the defendants the costs of trial leaving intact the plaintiff’s entitlement to costs up to and including the date of the offer to settle but no costs thereafter.