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ICBC Formal Offers Seeking to Pay FMEP Deemed Not Reasonable

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

Update October 6, 2015 – today the BC Court of Appeal overturned the below reasoning finding “In my view, the judge erred in principle in finding that the reference in the offer to settle to ICBC’s obligation to remit settlement monies in the amount alleged to be owed by the plaintiff for arrears of support to FMEP rendered the offer not one that the plaintiff ought reasonably to have accepted.”
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Interesting reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, finding that it is not reasonable for a Plaintiff to accept a formal settlement offer from a Defendant insured with ICBC where ICBC will first pay off debts the Plaintiff allegedly owes to the Family Maintenance Enforcement Program.
In today’s case (Loft v. Nat) the Plaintiff was injured in a motor vehicle collision and sued for damages.  At trial the Plaintiff sought substantial damages of over $1.8 million.  The Plaintiff’s claims were largely rejected with damages just over $60,000 being awarded.  Prior to trial the Defendant made two formal settlement offers, one for $125,000 and the second for $150,000.  Both offers contained the following term:
The defendants confirm that this offer is made with the acknowledgement that the Insurance Corporation of British Columbia (“ICBC”) has been served with a Notice of Attachment and/or Requirement to Pay and is therefore obligated to first pay to Family Maintenance Enforcement Program (“FMEP”) from the Settlement Payment in this matter. The defendants and /or ICBC are required to first meet any obligation to FMEP before paying monies to the plaintiff in relation to the Settlement Payment, pursuant to the Family Maintenance Enforcement Act, R.S.B.C. 1996, c. 127 and amendments and regulations thereto.
Mr. Justice Jenkins held that the offers were not reasonable on the basis that ICBC was not formally a debtor to the Plaintiff and as such deductions on the basis of the FMEP Notice of Attachment were not reasonable.  The court reasoned as follows:

[13]         The plaintiff also submits that the Notice of Attachment and/or Requirement to Pay should not have been included in the offers to settle as those documents were issued to ICBC, not to the defendants, and ICBC was not and would not become obligated to pay the settlement amount or the amount of any judgment. The Family Maintenance Enforcement Act, R.S.B.C. 1996, c. 127 provides for a notice of attachment in s. 15 (1) which states:

15 (1)   If the debtor has at any time defaulted in a payment required under a maintenance order, the director may serve a notice of attachment in the prescribed form on a person who is indebted or likely to become indebted to the debtor.

A “debtor” under the Act is defined as:

“debtor” means a person required under a maintenance order to pay maintenance;

[14]         The plaintiff submits that service of the Notice of Attachment and/or Requirement to Pay on ICBC would not attach the settlement funds, if one of the offers had been accepted, as ICBC would not have been indebted to the plaintiff. According to the wording of the settlement offers, it was the defendants who had offered to pay the plaintiff the settlement funds. ICBC was obligated to indemnify the defendants and had no obligation to pay the plaintiff the settlement amount upon acceptance of an offer to settle…

[31]         I am unable to make a costs award in favour of the defendants on the basis of the defendants’ two offers to settle as I conclude they were not offers that ought reasonably to have been accepted on the dates the offers were made. I accept both submissions put forward by the plaintiff in this regard. Even if the plaintiff was inclined to accept one of the offers to settle, the condition included in the offers relating to the Notice of Attachment and/or Requirement to Pay from FMEP should not have been a term of the offer. ICBC was not and would not have been indebted to Mr. Loft. ICBC was not a party to the action and its obligation was only to indemnify the defendants for negligence if the court awarded damages to Mr. Loft. As well, the offers of settlement were made by the defendants, not ICBC, and the defendants had no obligation to ICBC if one of the offers was accepted.

It Is Not Open For a Trial Judge To Award a Defendant Double Costs Where a Plaintiff Obtains Judgement

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9. 49 Comments on It Is Not Open For a Trial Judge To Award a Defendant Double Costs Where a Plaintiff Obtains Judgement

Reasons for judgement were released today by the BC Court of Appeal (C.P. v. RBC Life Insurance Company) confirming that a trial judge does not have the option of awarding a Defendant double costs in circumstances where a Plaintiff obtains a judgement at a quantum below a Defendant’s formal offer to settle.  In noting this restriction in judicial costs options the Court provided the following reasons:

[90]         Neither the trial judge nor the judge at Minhas made reference to the decision in Gulbrandsen v. Mohr, 2013 BCSC 1481. In Gulbrandsen the trial judge, in reasons indexed at 2013 BCSC 959, initially awarded the plaintiff costs up to the date of the defendant’s offer to settle, and double costs to the defendant thereafter. He then reconsidered the double cost award. After reviewing numerous authorities including A.E., A.E. Appeal,Ward v. Klaus, 2011 BCSC 99 and Currie v. McKinnon, 2012 BCSC 1165, he concluded that it was not appropriate to make an award of double costs to a defendant where the plaintiff had obtained a judgment.

[91]         I am of the same opinion. I do not believe that R. 37B intended to change the long-standing practice concerning the circumstances when double costs could be awarded. A plaintiff who obtains a judgment for less than an offer to settle is already subject to sanctions: R. 9-1(6)(a) allows the court to deprive the successful plaintiff of costs to which it would otherwise be entitled. Rule 9-1(5)(d) provides an even more punishing outcome as the plaintiff is not only deprived of costs he or she would otherwise receive, but must also pay the defendant’s costs subsequent to the offer to settle. To also allow a defendant double costs would skew the procedure in favour of defendants and unfairly penalize and pressure plaintiffs. I would adopt in that regard the comments of Madam Justice Adair in Currie:

[18]      I think it certainly can be argued that if a defendant who has made an offer to settle in an amount higher than the amount awarded to the plaintiff at trial (and that is what has been done in this case) was then awarded double costs, this would skew the procedure in favour of defendants and unfairly penalize and pressure plaintiffs.  This is because a plaintiff who rejected an offer to settle would potentially risk a triple cost penalty if he or she were to win at trial an amount less than the offer.  The plaintiff would suffer loss of the costs that he or she would normally receive on obtaining judgment at trial, and face double costs payable to the defendant.

[19]      In my view, there is a good reason to apply Rule 9-1 in a way that is even-handed, or more even-handed, as between plaintiffs and defendants.  I would say for this reason one would expect to see double costs awarded to a defendant, using the offer to settle procedure, in exceptional circumstances only, such as a situation where the plaintiff’s claim was dismissed all together after a plaintiff rejected an offer to settle.

[92]         In the result, I find that it was not open for the trial judge to award double costs to the defendant. It was an error in principle to do so. The decision in Minhas which made a similar order was also wrongly decided and should not be followed.

Difference Between Amounts Claimed and Awarded "Not a Reason for Depriving Costs"

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14. 71 Comments on Difference Between Amounts Claimed and Awarded "Not a Reason for Depriving Costs"

Unreported reasons for judgement were recently provided to me confirming that, where a party receives substantially less at trial than they were seeking, that is not a reason in and of itself to deprive the successful party costs.
In the recent case (Fadai v. Cully) the Plaintiff was injured in a collision and sued for damages.  At trial the Plaintiff was awarded damages but these “were substantially lower than he had claimed“.   The trial judge initially awarded the Plaintiff only 75% as a result of this.  The Court was asked to reconsider and after reviewing Loft v. Nat the Court reconsidered and awarded the Plaintiff full costs.  In reaching this decision Mr. Justice Schultes provided the following reasons:
[4] When I look at the decisions that I have been provided…it is clear that a difference between the amounts claimed and those awarded is not, in itself, a reason for depriving a successful party of their costs.
[5]  A proper allication of the law should lead Mr. Fadai receiving his costs of this trial, and not only the portion of them that I tentatively awarded him.
 

Double Costs Rejected In Face of Plaintiff Credibility Concerns

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Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, rejecting a request for double costs following a trial where a Plaintiff beat her formal settlement offer by a slim margin.
In today’s case (Griffith v. Larsen) the Plaintiff suffered an injury in a collision.  Prior to trial the plaintiff provided  a formal settlement offer of $85,000 which was rejected.  At trial she was awarded $85,159.  The Plaintiff asked for double costs but Mr. Justice Affleck refused to award these finding it would not be appropriate in the face of credibility concerns and further with the Defendant enjoying some success at trial on one of the most contentious issues.  In rejecting the request for double costs the Court provided the following reasons:

[5]             I have considered two factors which have influenced my decision against awarding double costs. The first is my findings of credibility which were not favourable to the plaintiff. While I concluded the plaintiff had suffered soft tissue injuries of some duration which were deserving of an award of damages, I also concluded that she had not given her evidence with candour. An award of double costs is meant in part to penalize a party for failing to accept a reasonable offer. On the other hand a party who has not been candid with the court at least in some instances ought not to be rewarded with double costs even if her damage award exceeds the offer. This is one of those instances.

[6]             The second factor I have considered is the defendants’ relative success on the most contentious issue at the trial. The plaintiff advanced a claim far exceeding the award which was largely predicated on the proposition she would need surgery to overcome a disabling thoracic outlet syndrome. I did not accept the plaintiff’s evidence on that issue. The defendants largely succeeded in persuading me that the thoracic outlet syndrome, if the plaintiff actually experienced it, had little effect on her physical condition. That is a further reason for concluding it is not appropriate to penalize the defendants with an award of double costs.

[7]             In Mudry v. Minhas, 2010 BCSC 1110, Kelleher J. discussed apportionment of an award of costs for relative success on an issue under the then Rule 57(15). While the court concluded the plaintiff had not met the test for apportionment, the plaintiff’s success in that case on the issue of fault (although no damage was found and the action dismissed) was a relevant factor under Rule 37B(6)(d), now Rule 9-1(5)(b), on considering if the defendant was entitled to double costs when there had been a defence offer, which in Mudry obviously exceeded the damage award which was nil..

[8]             I acknowledge there is some merit to the plaintiff’s submission that, notwithstanding the absence of success on the issue of thoracic outlet syndrome, the plaintiff’s offer took into account the risk of failure on that issue. Nevertheless, in the circumstances of this action I am unwilling to penalize the defendants in costs when they largely succeeded on that question. The usual rule will prevail that party and party costs on Scale B follow the event.

"Short Fuse" Formal Settlement Offer Triggers Double Costs

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Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, addressing whether a formal settlement offer open for only 3 days could trigger costs consequences.
In today’s case (Henry v. Bennett) the Plaintiff was involved in a 2008 collision and sued for damages.  The claim was ultimately dismissed with the Plaintiff being at fault for the crash.  Prior to the trial the Defendant provided a formal offer of $30,000 which was only open for acceptance for three days.
The Plaintiff argued that the offer should not attract double costs in part due to its short window.  Madam Justice Ballance disagreed finding given the significant liability risks at trial it was a reasonable offer.  In addressing its short lifespan not being a barrier the Court provided the following reasons:

[41]         I would ordinarily regard a three-day fuse attached to an offer that was delivered close to the eve of trial, where it would be expected that the party would be engrossed in the demands of trial preparation, as posing an unreasonable time constraint within which to give it meaningful evaluation.  The difficulty facing Mr. Henry, however, is that due mainly to his own damaging discovery evidence, he ought reasonably to have anticipated that he faced significant exposure of not only faring poorly on the issue of liability, but losing his case altogether.  Knowing, as he did, his harmful evidence, Mr. Henry should have appreciated the deep weakness of his claim and the risk of significant apportionment against him or the outright dismissal of his suit and his exposure for an adverse costs award.  All things considered, the 2011 Offer was one that ought reasonably to have been accepted by Mr. Henry.

[42]         With respect to other the pertinent factors, in dismissing Mr. Henry’s case, the Court placed heavy emphasis on his discovery evidence concerning liability for the accident.  Relatively little is known about Mr. Henry’s specific financial circumstances.  Based on the evidence at trial, it is reasonable to infer that his financial situation is modest.  However, that, of itself or in combination with any other factor, is not reason enough in this case to refuse the defendant an award of double costs.

[43]         The defendant is entitled to costs of this proceeding at Scale B up to and including March 8, 2011, and double costs thereafter.

"Walk Away" Offer Fails to Trigger Double Costs in Liability Trial

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Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing a defence application for double costs after a Plaintiff’s personal injury claim was dismissed.
In this week’s case (Miller v. Emil Anderson Co. Ltd.) the Plaintiff was involved in a motor vehicle collision alleging that an unidentified vehicle contributed to the incident.  Prior to trial the Defendant made a formal settlement offer of $1 which “expressed the defendants’ belief that the Court would conclude that Mr. Miller had suffered no compensable injury.”
Ultimately the Plaintiff’s claim was rejected with the Court concluding that “memory and perception of the key events preceding his loss of control of his vehicle were not reliable.”.  Despite this the Court found the walk-away offer was not reasonable as the plaintiff had a sincere belief in his perception of the event and that “ had he accepted the defendants’ offer, he would have been giving up, without adjudication, a claim that he believed had merit“.
In dismissing the Defendant’s request for double costs Madam Justice Ballance provided the following reasons:
[15]                      In the present case, Mr. Miller proceeded upon his hypothesis as to how the accident occurred, including the purported role of another vehicle.  He tendered no expert evidence in the field of engineering and/or accident reconstruction in support of his theory.  In weighing the evidence, I concluded that Mr. Miller had not proved his case on a balance of probabilities.  In reaching that conclusion, I found that his memory and perception of the key events preceding his loss of control of his vehicle were not reliable.
[16]                      Despite the frailties in Mr. Miller’s testimony and his faulty recall of events, I did not doubt that Mr. Miller’s perception of events, including his theory as to how the accident occurred, was sincere.  He did not attempt to mislead or deceive the Court.  Had he accepted the defendants’ offer, he would have been giving up, without adjudication, a claim that he believed had merit.  A belief that was neither groundless nor frivolous…
[18]                      The Offer is to be considered in the context of a serious liability issue where neither side called expert engineering or accident reconstruction evidence in relation to the pivotal issue of what had caused the accident.  Mr. Miller was aware that he and the defendants held conflicting versions of the material events and that there was a risk that, if the Court found that the evidence did not support his case, his action would be dismissed.  However, it does not follow that the nominal Offer ought reasonably to have been accepted by Mr. Miller at any time.  As was the case in Stuart, the Offer provided nothing to Mr. Miller in relation to the claim itself and proffered little meaningful benefit to him.
[19]                      The evidence indicates that Mr. Miller was in his early 70s at the time of the accident and was retired or semi-retired from prospecting.  Beyond that, there was no cogent evidence of his financial circumstances and I am therefore unable to agree with his counsel’s submission that it was clear he is impecunious.
[20]                      Although Mr. Miller ultimately failed to make out his case on a balance of probabilities, I would not characterize his refusal to accept the Offer as unreasonable.
[21]                      Weighing the pertinent factors and giving the most weight to the fact that I am unable to say that it was unreasonable for Mr. Miller to refuse the Offer, I consider it a fair exercise of my discretion to decline to order double costs.  An award of costs at Scale B in favour of the defendants is appropriate in this case and will likely be of significant consequence to Mr. Miller.
[22]                      Accordingly, the defendants’ application for double costs is dismissed.  They will have their costs at Scale B.

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

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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.
 

Excessive Delay Strips Defendant of Double Costs Entitlement

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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.
 

A Balanced Costs Award Following Jury Trial

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In an illustration that not all trial ‘losses’ trigger catastrophic costs consequences, reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, ordering balanced costs consequences.
In this week’s case (Desharnais v. Parkhurst) the Plaintiff was involved in two vehicle collisions.   Prior to trial the Defendants provided two formal offers, the first at $50,000 the second at $75,000.  The Plaintiff, who was seeking in excess of $1 million rejected both offers and proeeded to trial.  Following a thirteen day jury trial the Plaintiff’s damages were ultimately assessed at $30,100.
Both parties had medical evidence to justify their respective positions, however, the Court noted, some of the opinions of the Plaintiff’s experts were “highly suspect”.
The Defendants sought substantial costs having bested their formal settlement offers. The Court noted a more appropriate result would be to award the Plaintiff costs up to the date of the second formal offer and to have the parties bear their own costs thereafter.  While such an order still has significant financial consequences for the Plaintiff it is far less sever than ordering payment of the Defendant’s costs. In reaching this decision Mr.Justice Saunders provided the following reasons:
[42]         On the whole, I do not consider either the First or the Second Offer as having reflected, objectively speaking, a genuine attempt at compromise. I find them to hae been more reflective of what the Applicants could reasonably have hoped to achieve if all or substantially all of the issues were resolved in their favour. I am not dissuaded from taking this view by the fact that the jury awarded even a lesser amount; I do not think it is unfair to counsel or to the jury for me to say that the jury’s decision was considerably less than what reasonably prudent counsel would have regarded as a “win” for the defence. I cannot find that either offer ought reasonably to have been accepted by the plaintiff.
[43]         As Goepel J. stated in Ward, that is the beginning, not the end of the analysis. The most basic principle underpinning the Rules relating to costs is that costs of a proceeding are to be awarded to the successful party (R. 14-1(9)). This expectation is intended to promote sensible conduct throughout court proceeding; it exists notwithstanding the broad judicial discretion to depart from the principle, which is generously built into the Rules.
[44]         In this case, the jury found that the plaintiff had successfully proven some damage. But for the offers to settle, he would be entitled to his costs. Having regard to the factors set out in Rule 9-1(6), including giving some weight to the plaintiff’s financial circumstances, I do not find that the offers were so substantial that the Applicants ought to be entitled to any indemnification against their own costs. The plaintiff’s position was not completely lacking in merit. It was not frivolous. However, the fact that the settlement offers exceeded the judgment amount cannot be ignored. The Applicants were forced to incur the expense of a trial which they were willing to avoid by paying the plaintiff a not insubstantial sum, a sum which ended up being considerably greater than the damages the plaintiff was judged to be entitled to. It would be unfair to require the Applicants to indemnify the plaintiff for the costs of advancing a claim that was ultimately judged to be greatly overvalued.
[45]         I find that the plaintiff is entitled to his costs up to the date of delivery of the Second Offer. The parties will bear their own costs thereafter.
 
 

"All-Inclusive" Formal Settlement Offers Can Trigger Costs Consqeunces

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Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, finding that an “all inclusive” formal settlement offer is capable of triggering costs consequences.
In today’s case (Wettlaufer v. Air Transat A.T. Inc.) the Plaintiff sued for damages after an “aircraft touched down and then braked, an unsecured food cart struck, with force,(struck) the back of the plaintiff’s seat.”.   Prior to trial the Defendant made an offer, inclusive of costs and disbursements, of $250,000.  The Plaintiff rejected this offer, proceeded to trial and sought damages of over $1 million.  Much of the Plaintiff’s claimed damages were rejected with an award of approximately $110,000.
The Plaintiff argued the all inclusive offer should not trigger costs consequences.  Mr. Justice Funt disagreed finding there is no prohibition to formal offers which have costs and disbursements built into them.  In reaching this decision the Court provided the following reasons:
[18]         The present Rules of Court provide greater discretion to the Court and avoid the formulaic approach reflected in the older rules set forth above.  Justice Masuhara in Dodge v. Shaw Cablesystems, 2009 BCSC 1765, described the rationale for the rejection of all-inclusive offers under Rule 37 (the old rule in Helm):
[22]      The old Rules provided a complete code which determined the costs consequences of an offer to settle:  Cridge v. Harper Grey Easton, 2005 BCCA 33 at para. 20, 37 B.C.L.R. (4th) 62.  Under the old Rule 37(24)(a), if the defendant made a monetary offer to settle which the plaintiff did not accept, and the plaintiff obtained a judgment equal to or less than the settlement amount, the defendant was entitled to costs from the date the offer was delivered.  With such rigid cost consequences from which the judge had no discretion to depart, the rationale for the rule against “all-in” offers in Helm was engaged.  Where the judge was unable to discern what part of the settlement offer was for costs and what part was for discharge of the action, the judge could not precisely evaluate whether or not the plaintiff obtained judgment more favourable than the settlement offer, leading to potentially drastic consequences.
[Footnote omitted.]
[19]         In his October 18, 2012 letter, defendant’s counsel, Mr. Dery, rejected the plaintiff’s offer to settle for $996,025 plus taxable costs and countered with the $100,000 all-inclusive offer.  The plaintiff did not provide a bill of costs and disbursements.
[20]         Absent a bill of costs, the defendant’s further all-inclusive offer of $250,000 is understandable.  Most litigants seeking to resolve a dispute prefer finality.
[21]         With Helm decided on the significantly different rules, the Court is not bound by the rule in Helm that all-inclusive offers cannot be considered.  The Court’s consideration of the $250,000 all-inclusive offer accords with the text, context and purpose of the current Rule 9‑1.