Skip to main content

Court Denies Defendant Costs to Prevent "Pyrrhic Victory" for Plaintiff

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9.

Reasons for judgement were released today demonstrating the Court’s discretion for costs following trial where formal settlement offers were exchanged.
In today’s case (Bains v. Antle) the Plaintiff was injured in a collision and sued for damages.  Prior to trial the Defendant presented a formal settlement offer of $185,000.  The Court noted that “some of the plaintiff’s initial negotiating positions were clearly inflated” but ultimately it was reasonable for the Plaintiff to refuse the Defendant’s offer and proceed to trial in the face of medical evidence supporting her alleged claim of chronic pain and related disability.
The decision proved costly with a jury awarding the Plaintiff damages of $37,800.  The Defendant asked to be awarded post offer costs and to strip the Plaintiff of her post offer costs.  The Court refused noting the Plaintiff is of modest means and having her pay Defendant costs would reduce the verdict to a Pyrric victory.  In awarding the Plaintiff costs Madam Justice Power provided the following reasons:

[36]         It is my view that all of the financial evidence at trial supports the fact that the plaintiff was a person of modest means.  Having already concluded that the settlement offer was not one which ought to have reasonably been accepted, it is evident that an order requiring the plaintiff to either pay the well-funded defendants’ costs, or in the alternative denying the plaintiff her costs, from September 20, 2016 onwards, would result in a pyrrhic victory and could have the effect of discouraging plaintiffs from pursuing valid claims.

[37]         As a result, although not determinative, the relative financial circumstances of the plaintiff and the defendant insurer are a consideration that I have taken into account.

[38]         I am not persuaded that in these circumstances the court should exercise the discretion afforded to it under Rule 9-1(4) and (5).  Having considered all of the relevant factors, I find that the plaintiff is entitled to her costs at Scale B and disbursements, including the cost of this application.  The defendants’ application is dismissed.

Uninsured, Self Represented Litigant Learns that Perjury is a Poor Idea

Written by admin on . Posted in BC Supreme Court Costs Cases, Uncategorized.

From the vault of how not to represent yourself in court, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, admonishing a self represented litigant for providing the Court with perjured evidence.
In today’s case (Dizon v. Losier) the Defendant rear-ended a vehicle driven by the Plaintiff.  The Defendant was uninsured at the time and represented himself in court.  As part of his defense strategy he called a witness who said he witnessed the collision and the Plaintiff stopped for no reason.  On cross examination it became clear that this witness did not see the collision and colluded to provide this friendly evidence for the Defendant.  The Court went on to find the Defendant largely at fault for the crash, ordering payment of almost $40,000 in damages, costs, and one day of ‘specical costs’ for the perjured evidence. In admonishing this evidence Madam Justice Russell provided the following comments:

[43]         Mr. Losier called a witness who provided completely concocted evidence about seeing the plaintiff’s car stop for no reason just before the accident. This witness, Mr. Dale Carmount, was asked by this Court if he had known the defendant before the accident. This was done in order to test whether there had been any complicity with respect to this convenient account of events. Mr. Carmount denied having met the plaintiff before the accident. Instead, he said he had responded to a notice posted by Mr. Losier asking for witnesses to the accident.

[44]         In cross-examination, plaintiff’s counsel referred to a Facebook page that Mr. Carmount denied existed, but which was clearly that of Mr. Carmount, and then asked him about family relationships. Mr. Carmount then revealed that, through family in Ontario, Mr. Carmount and Mr. Losier were acquainted before the accident.

[45]         In light of this evidence, I find that the two of them developed a statement for Mr. Carmount to sign that was completely untrue. Mr. Carmount had not witnessed the accident occurring as he had stated under oath.

[46]         That this evidence amounted to perjury, for which both participants could have been prosecuted, was not lost on Mr. Losier. He tendered an apology to the Court.

[47]         This turn of events significantly undermined the reliability of the defendant’s evidence.

…

[84]         … the plaintiff will be awarded one day of special costs for the unnecessary delay in this matter for the consideration of the perjured evidence from the defendant.

…

"Meagre" Plaintiff Income Keeps Court From Awarding Costs to Successful Defendant

Written by admin on . Posted in BC Supreme Court Costs Cases.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, demonstrating judicial discretion in dealing with costs after a plaintiff fails to beat a defence formal offer at trial.
In today’s case (Barta v. DaSilva) the Plaintiff was injured in a 2007 collision and sued for damages.  The Plaintiff alleged traumatic brain injury and argued that he had millions in losses as a result.  At trial a jury rejected the alleged brain injury and awarded damages of $77,000 for the Plaintiff’s proven injuries.  Prior to trial ICBC offered to settle the case for $150,000.
The Plaintiff sought full costs for the trial where ICBC sought to have the Plaintiff pay their post offer costs or simply strip each party of costs for the trial itself.  In the end the court ordered that each party bear their own costs of the trial.  In finding this fair the court noted that due to the Plaintiff’s ‘meagre‘ income there would be “no utility in imposing the costs of the trial on the plaintiff.”.
In reaching this decision Mr. Justice Affleck provided the following reasons:

[12]        The defendant’s offer of $150,000 plus costs and disbursements was a serious offer. The plaintiff ought to have known that the defendant’s legal advisers had a plausible basis for concluding that the plaintiff would be unable to prove a causal connection between his accident injuries and his financial losses. In my opinion the defendant’s offer ought reasonably to have been accepted.

[13]        The relative financial position of the parties is of no consequence on this application. The defence was conducted by ICBC, which obviously has much greater financial strength than the plaintiff, but unless it used that strength improperly in this litigation that is a neutral factor: See Vander Maeden v. Condon, 2014 BCSC 677.

[14]        When its offer to settle was not accepted the defendant had no serious option but to defend the action at trial. The result was an award of damages about one half the offer made by the defendant. In that circumstance the deterrent function of the costs rule would be nullified if I exercise my discretion by awarding costs to the plaintiff throughout as he submits I should. I declined to do so.

[15]        The evidence at trial indicates that the plaintiff’s assets were severely depleted by the effects of the financial downturn in 2008 and 2009. Mr. Creighton informed me that his client’s income is now meagre. I can see no utility in imposing the costs of the trial on the plaintiff.

[16]        My order is that the plaintiff is entitled to his costs and disbursements to and including May 15, 2014, and that thereafter the parties will each bear their own costs and disbursements. I recognize that the usual order would be to impose the costs following the defendant’s offer on the plaintiff. The defendant, however, has proposed the disposition which I have made, which I consider to be generous to the plaintiff in the circumstances.

Plaintiff Ordered to Pay Double Costs After Having Injury Claim Dismissed

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9.

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, ordering a Plaintiff to pay double costs after the dismissal of an injury claim.
In today’s case (Ross v. Andrews) the Plaintiff was involved in a 2011 collision, alleged injury and sued for damages.  Prior to trial the Plaintiff declined two formal settlement offers, the first for $41,000 the second for $75,000.
After 15 days of trial “the jury deliberated and determined that the plaintiff had not been injured in the motor vehicle accident”.
Under the loser-pays BC Supreme Court rules the Plaintiff was ordered to pay the Defendant’s costs and double costs from the time of the second offer onwards.  After a 15 day jury trial it is a safe bet that the costs consequences would be in the tens of thousands of dollars.  In finding double costs appropriate Mr. Justice Ball provided the following reasons:

20]         The evidence aforesaid created significant areas where the credibility of the plaintiff was subject to negative findings by a jury. When those areas are added together the plaintiff ought to have actively considered any offer which offered a positive return without the risks of a trial.

[21]         Based on a review of the evidence at trial, described in part above, and the cases cited, as well as a review of the submissions of counsel, I find that the offer to settle in the amount of $75,000 ought reasonably to have been accepted by the plaintiff having given consideration to the foreseeable credibility problems and the negative verdict of the jury. The offers to settle both included positive returns whereas at trial the plaintiff’s action was dismissed. The relative financial circumstances of the parties do not preclude an order for double costs in this situation. As a result, applying Rule 9-1 of the Supreme Court Rules, the defendants are entitled to the costs of this action generally and double costs of this action commencing on May 26, 2016. This date is seven days after the second offer to settle was delivered to the plaintiff; a reasonable period of time for the plaintiff to consider the offer. Double costs are awarded from May 26, 2016 until the end of the trial and will include the costs of the application to fix costs. The defendants are also entitled to disbursements but not doubled.

[22]         If the parties are unable to agree on the quantum of costs and disbursements, there shall be a reference to the registrar to assess costs pursuant to Rule 14-1(4) of the Supreme Court Rules.

Double Costs Awarded After Trial Judgement Nearly Doubles Plaintiff Formal Offer

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9.

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff double costs after obtaining judgement nearly doubling her pre trial formal settlement offer.
In the recent case (Risling v. Riches-Glazema) the Plaintiff was inured in a motor vehicle collision and prior to trial made a formal settlement offer of $315,000.  The Defendants rejected the offer and proceeded to trial where damages of $622,500 were awarded.  The Plaintiff sought and was granted post offer double costs.  In agreeing these were warranted Mr. Justice Affleck provided the following reasons:

[7]             In my view:

a)              The plaintiff’s case was well known to the defendants at the time of the offer. The plaintiff had been examined for discovery on two occasions; had attended two medical examinations at the request of the defendants, and a mediation had taken place in June 2016;

b)              the offer was made one week before the trial began which gave the defendants a full opportunity to consider it;

c)               the offer had a relationship to the claim and could not be characterized as a “nuisance offer”; and

d)              the offer was expressed in plain language and thus easily evaluated.

[8]             The final judgment of the court greatly exceeded the offer. The plaintiff submits her offer was a true attempt to reach a reasonable compromise of the claim and that the rationale for the double cost rule is to encourage parties to settle by taking a realistic view of the probable outcome of a trial. The plaintiff submits that rationale would be thwarted if in the present circumstances she is not entitled to double costs.

…

[10]         The defendants submit their limited understanding of the case made it difficult to quantify the claim and that, while the rationale for the rule for double costs is acknowledged, the defendants ought not to have been deterred from defending the claim for fear of a “punishing costs award”. Currie v. McKinnon, 2012 BCSC 1165 is relied on in support of that argument.

[11]         The defendants also submit that “no rationale for the offer was provided” in the plaintiff’s letter of August 15, 2016.

[12]         I do not agree that no rationale was provided. The plaintiff described the heads of damages she would advance at the trial and advised that the offer took into account “Part 7 Benefits paid or payable pursuant to Section 83 of the Insurance (Vehicle) Act”. Furthermore, the defendants had an opportunity on the mediation to canvas fully with the plaintiff’s legal advisers the extent of the plaintiff’s claim and the evidence at trial which would be advanced to support the claim.

[13]         I am also mindful that in Hartshorne the Court of Appeal expressed the view that the list of factors described in para. 27 of its reasons need not be relevant in every case.

[14]         Currie v. McKinnon does not help the defendants on this application. That case involved a personal injury claim with an award of damages which fell within the monetary jurisdiction of the Small Claims Court. Double costs were not awarded. In short Currie v. McKinnon is distinguishable on its facts from the matter before me to such an extent that it cannot usefully be called in aid of the defendants’ argument.

[15]         The plaintiff is entitled to the costs of this action including double costs from the date of the offer.

Adverse Costs Insurance "Is Not a Proper or Necessary Disbursement "

Written by admin on . Posted in BC Supreme Court Costs Cases.

Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, finding that the cost of an insurance policy protecting a plaintiff from adverse costs/disbursements consequences should the prosecution of an injury claim not proceed favorably is not a recoverable disbursement.
In the recent case (Wynia v. Soviskov) the Plaintiff hoped to recover the costs of the insurance policy from the Defendant in the underlying tort action. In finding the expense was not a recoverable disbursement District Registrar Nielsen provided the following reasons:

[4]             The plaintiff has raised the novel issue of whether the cost of an insurance policy obtained by the plaintiff to insure against own disbursements, and opponents’ costs and disbursements, in a lost or abandoned court case, is a recoverable disbursement pursuant to SCCR 14-1 (5). 

[5]             The defendants object to this particular disbursement and rely upon an Ontario case, Markovic v. Richards et al, 2015 ONSC 6983, in support of their position. In Markovic v. Richards, supra, the issue was stated succinctly as “Is the plaintiff’s premium for after-the-event insurance, a compensable disbursement”. The court concluded at paragraph 7 that it was not, stating:

While it is clearly the plaintiff’s prerogative to obtain ATE insurance [which is after-the-event insurance], I do not accept that such premium should be reimbursed by the defendants as a compensable disbursement. Such disbursements have not, as far as I am aware, ever been entertained in Canada and have certainly not been the subject of legislative reform as was the case in the UK. I can think of no policy reason that such should be compensated as a taxable disbursement. Existence of the policy may well provide comfort to the plaintiff, it is however an expense that is entirely discretionary, does nothing to advance the litigation, and may in fact even act as a disincentive to thoughtful, well-reasoned resolution of claims.   

[6]             In British Columbia, to be recoverable as a disbursement SCCR 14-1(5) provides that the disbursement must have been necessarily or properly incurred in the conduct of the proceeding.  The phrase “necessarily or properly incurred in the conduct of the proceeding” was recently addressed by the Court of Appeal in MacKenzie v. Rogalasky, 2014 BCCA 446. The Court of Appeal  states at paragraphs 78 through 80:

[78]      In my opinion, the various iterations of the rule set out above permitting recovery of expenses focuses most naturally on the exigencies inherent in the particular litigation rather than capturing expenses arising from the financial circumstances or other choices of a party. Embedded in the rule is the requirement for a causal connection between the issues in the case and the expense incurred to prove or disprove them.

[79]      The rule, in its current form, permits the recovery of “disbursements … incurred in the conduct of the proceeding”. In my view, quite apart from the language “incurred in the conduct of the proceeding” the term “disbursement”, when used in the context of a costs rule that relates to the taxation of costs in particular litigation, does contain limits that narrow its potential broad applicability. It appears to me that the purpose of permitting the recovery of disbursements in the context of a costs regime is to permit the recovery of those expenses that arise inherently and directly from the issues in the case which relate, as the appellants suggest, to the direction, management, or control of litigation and which pay for materials and services used to prove a claim or defence. These expenses arise directly from the nature and conduct of the allegations in a proceeding. By contrast, interest expenses do not arise from the nature of the allegations or the conduct of proceedings, they arise from unrelated causes including the financial circumstances of a party. In my view, as such, they do not fall within the meaning of the word “disbursements” in the context of a costs rule.

[80]      It will be apparent that the conclusion I have reached does not depend on limiting the applicability of the word “disbursements” by reference to the phrase “incurred in the conduct of the proceeding”. I consider that the meaning of the words “disbursement” or “expense” has always excluded out-of-pocket interest expenses. The addition of the phrase “incurred in the conduct of the proceeding” in the rule in 1990 did not narrow or change the meaning of the word “disbursement” or otherwise limit its application. Rather, the phrase reinforces and confirms what has always been the case. To be recoverable a disbursement must arise directly from the exigencies of the proceeding and relate directly to the management and proof of allegations, facts and issues in litigation, not from other sources. In my view, that is what is captured by the phrase “the conduct of the proceeding”.

[7]             In my view, applying the reasons of the BCCA in MacKenzie v. Rogalasky, supra, the cost of insurance coverage is not a proper or necessary disbursement incurred in the conduct of the proceeding. No doubt it provides a measure of financial comfort to the plaintiff, however, it does not arise from the exigencies of the proceeding and relate directly to the direction, management, or control of the litigation used to prove a claim against the defendants. Accordingly, the cost of the insurance coverage is disallowed.

Full Fast Track Costs Awarded in "Simple" Case Settled 7 Months Pre-Trial

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 15.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, awarding a plaintiff full fast track costs despite settlement 7 months pre-trial.
In today’s case (Yuan v. Fan) the Plaintiff was involved in a head on collision in 2012.  She sued for damages and fault was admitted.  7 months pre trial the case settled for $48,000 plus costs but the parties could not agree on their assessment with the Defendant arguing that full fast track costs should not be awarded as there was still significant trial prep work needed.  District Registrar Nielsen disagreed and awarded the full costs.  In doing so the Court provided the following reasons:

[9]             The defendants take the view that the plaintiff had significant work left to do in order to be prepared for trial. They submit the plaintiff would have to meet with her experts prior to trial and prepare lists of questions for their witness’s.  I agree.  However, that still begs the question of whether “significant preparation for trial” had taken place in the current circumstances.

[10]         In the present case liability was admitted, therefore work in that regard wasn’t needed. The plaintiff abandoned her claim for wage loss, and therefore, no pre-trial work was necessary in that regard.  Discoveries had been completed, document exchanges had been completed, and medicolegal reports had been obtained. Detailed settlement offers had been exchanged. All that remained to be done was the filing of a trial brief, attending a trial management conference, and immediate trial preparation. Immediate trial preparation is required in each and every case whether settlement occurs two weeks, or two months prior to trial.

[11]         This was not a complex case.  It was a simple case of assessing damages where there wasn’t a wage loss claim.  Simple cases require less work to be ready for trial.  The plaintiff’s case has met the threshold of being significantly prepared for trial in all the circumstances.  I award the full fast track cap.

Plaintiff Stripped of Costs For Failing to Beat Defence Offer

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9.

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, stripping a Plaintiff of post offer costs after receiving a jury award less than a pre-trial defence settlement offer.
In today’s case (Rutter v. Vadnais) the Plaintiff was injured and sued for damages.  About 2 years prior to trial the Defendant offered to settle for $50,000.  The offer was rejected and at trial a jury awarded global damages of $20,000.
The Court stripped the Plaintiff of costs from the time of the offer forward which would significantly impact the award given the costs of running the trial.  In reaching this decision Madam Justice Brown provided the following reasons:

[12]         Turning to the effect of the offers exchanged in this matter, Rule 9-1(5) and (6) provides:

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 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 or service 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 or service 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 or service of the offer to settle.

[am. B.C. Reg. 119/2010, Sch. A, s. 21.]

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 served 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.

[13]         The plaintiff in this case had strong medical opinions to support her position. The defence position was contrary to the weight of the medical evidence. Although the jury award is less than that offered by the defendant, I am not persuaded that the offer made was one that ought reasonably to have been accepted either on the date that the offer was delivered or any later date. As Madam Justice Adair said in Currie v. McKinnon, 2012 BCSC 1165 at para. 20: “While the purpose of the Rule is to encourage reasonable settlements, parties should not be unduly deterred from bringing meritorious, but uncertain, claims because of the fear of a punishing costs order.”

[14]         Second, while the amount recovered is less than the settlement offer, that is rarely a determinative factor, particularly as jury awards are more difficult to predict than judge assessments (Smagh v. Bumbrah, 2009 BCSC 623 at para. 13).

[15]         The relative financial circumstances are also a neutral factor in this case. Although Ms. Rutter does have some assets, I am not able to say that losing her costs or paying Ms. Vadnais her costs would not have a dramatic financial effect on Ms. Rutter.

[16]         Finally, although the defendant suggests that the history of negotiations between the parties is such that the offer of $50,000 was reasonable in response to the plaintiffs immediately preceding offer of $61,000, I am persuaded by the plaintiff’s response submissions that there were good reasons for her increasing her offer beyond $61,000 “as her retraining exposed her to physical demands of what she could expect to encounter ‘on the ward’ this showed her that her loss was likely to be more than she had previously thought.” The offer of $61,000 was made at the start of her retraining.

[17]         In conclusion, having considered the submissions of the parties and the factors set out in Rule 9-1, the plaintiff will have her costs of the action at Scale B until March 15, 2014, a reasonable time in which to consider the defendant’s offer. The parties will bear their own costs thereafter.

Plaintiff Stripped of Trial Costs Following Judgement Below Settlement Offer

Written by admin on . Posted in BC Supreme Court Costs Cases.

Reasons for judgement were released today stripping a plaintiff of trial costs and further ordering the Plaintiff to pay the Defendants trial costs after failing to beat a defense formal settlement offer at trial.
In today’s case (Ben-Yosef v. Dasanjh) the Plaintiff was struck in 2011 by the Defendant’s vehicle while crossing a cross-walk.  The Plaintiff suffered from a pre-existing and longstanding chronic pain disorder.    The collision resulted in soft tissue injuries and aggravated the pre-existing condition.
Prior to trial ICBC offered to settle the claim for $70,000.  The Plaintiff declined this offer and proceeded to trial where damages of just over $32,000 were assessed.
In finding the pre trial offer reasonable and attaching costs consequences for failing to beat it Mr. Justice Bowden provided the following reasons:

[8]             The rules on costs are intended to encourage the early settlement of disputes by rewarding the party who makes a reasonable settlement offer and penalizing the party who declines to accept such an offer. (Hartshorne v. Hartshorne, (2011 BCCA 29)

[9]             In considering whether the offer to settle was one that ought reasonably to have been accepted the circumstances that existed at the time the offer was made should be considered rather than the award that was made using hindsight.

[10]         At the time the offer was made there is no suggestion that the plaintiff was not ready for trial. By that time examinations for discovery would have been completed and documents exchanged along with expert medical reports. In my view, the parties were in as good as a position as they would ever be to assess the relative strengths and weaknesses of the case. (See the comments of Fleming J. in White v. Wang, 2015 BCSC 1080 at para. 10)

[11]         The plaintiff had four business days and a weekend to consider the offer of the defendants and presumably discussed the merits of accepting the offer with his counsel. The defendants’ offer was rejected and no counter-offer was made.

[12]         Fleming J. referred to comments by Griffin J. in Bevacqua v. Yaworski, 2013 BCSC 29, regarding the process at para. 8:

In personal injury claims, in which liability has been admitted, there is in most cases a somewhat predictable range of possible awards. It is to be expected that counsel taking a case to trial will have discussed with their clients the possible range of damages, the evidentiary issues and the risks of and expense of proceeding to trial. It is to be expected therefore that as the trial approaches, counsel and their client have in mind a possible range of recovery and the risks of litigating. Naturally, a plaintiff hopes for an award in the high end of the range and the defendant for an award at the low end.

[13]         In that case the plaintiff was deprived of costs when the defendant delivered an offer to settle on the eve of trial.

[14]         While I understand that the plaintiff attended his daughter’s wedding on the weekend following the making of the offer, there is no suggestion that the plaintiff and his counsel had any difficulty discussing the offer before it expired.

[15]         The offer by the defendants was more than twice the amount that was awarded to the plaintiff.

[16]         As to the relative financial circumstances of the parties other than understanding that the plaintiff has not been employed for some period of time there was no evidence upon which to determine what the financial impact of the cost award sought by the defendants would be on the plaintiff.

[17]         Having considered the factors mentioned and the circumstances of this case, I have concluded that the plaintiff should be deprived of costs from the date of the offer to settle by the defendants until the end of the trial and costs shall be awarded to the defendants for that period.

 

"Costs Awards Should Not Punish Plaintiffs From Taking Forward Meritorious Claims"

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9.

In a demonstration of the judicial flexibility that exists under the BC Supreme Court Rules when assessing costs consequences following trials with formal offers in place, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff full costs despite failing to beat a Defense formal settlement offer.
In today’s case (Anderson v. Kozniuk) the Plaintiff was involved in a pedestrian/vehicle collision.  Both parties were found partially at fault.  The Plaintiff suffered various physical injuries but also advanced a brain injury claim which was not accepted at trial.  Prior to trial ICBC issued a formal settlement offer of $125,000.  At trial the Plaintiff’s damages were assessed at $78,897 less 30% to reflect the plaintiff’s contributory negligence.
ICBC sought to strip the Plaintiff of post offer costs as a result but the Court exercised its discretion to award the Plaintiff full costs.  The Court was influenced by the fact that the costs of the prosecution were significant and an award of costs to ICBC would strip the Plaintiff of the totality of his damages.  In reaching this decision Madam Justice Sharma provided the following reasons:

[29]         The plaintiff submitted that the award of costs in this case exceeds the total amount of the judgment. In his written submissions, the plaintiff states that “[i]f the court orders that the Plaintiff is to pay costs to ICBC, it means that Mr. Anderson must pay the entire judgment award to ICBC, instead of spending this money on his health condition and prognosis.” I agree that is a significant factor if the court is to be mindful that costs awards should not punish plaintiffs from taking forward meritorious claims, as discussed above.

[30]         The plaintiff also says that the defendant was defended and funded by the insurer, whereas Mr. Anderson is impecunious having lost the ability to work, and previous cases have held this is a proper consideration: Smith v. Tedford, 2010 BCCA 302; Hunter v. Chandler, 2010 BCSC 1124 at paras. 23-25; Gregory v. Insurance Corporation of British Columbia, 2010 BCSC 1369 at para. 9; andMartin v. Lavigne at para. 23. I agree. Although there was no evidence before me about Mr. Anderson’s impecuniosity, I have no reason to doubt counsel’s word. Certainly at trial the evidence was consistent with counsel’s statement.

[31]         Based on these factors (and all others), the plaintiff submits it would be unfair and unreasonable that the plaintiff be ordered to pay costs to the defendant.

[32]         Finally, the plaintiff points to other factors that he says are relevant to the court’s exercise of discretion. He points out that two expert doctors did conclude that he suffered a brain injury. He also says it was not disputed that after the accident he displayed a number of characteristics consistent with having suffered a brain injury, including the fact that he had a flat affect and his behaviour around his family was different, as well as showing increased irritability, frustration and anger. The plaintiff also points out that the brain scans clearly show that he had brain lesions consistent with a brain injury. The plaintiff had increased difficulties with concentration and learning new tasks. Although I made a finding that both his alcohol consumption and anxiety had significant impacts on his life following the accident, the plaintiff suggests he should not be faulted for failing to guess that those factors would be essentially held against him when making a conclusion about whether he had a brain injury or not.

[33]         The award of costs is an exercise of the court’s discretion, guided by the legal principles identified above. This is not an exercise of counting up which factors favour which party and doing a mathematical calculation. The court must take into account all of the factors weighed against the circumstances of the case. Remembering that ultimately the result must not impose injustice or unfairness on either party, I exercise my discretion and conclude the normal rule of apportionment does not apply and therefore the plaintiff is entitled to 100% of his costs at trial. Because he has been successful on this application, I also award him the costs of this hearing.