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More on ICBC's Subrogated Costs Rights (Or Lack Thereof)

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, Uncategorized. 48 Comments on More on ICBC's Subrogated Costs Rights (Or Lack Thereof)

Earlier this year the BC Supreme Court released reasons for judgement finding that when a Defendant succeeds in a lawsuit and is awarded costs the order is for their benefit not their insurer.  In short the Court held that ICBC has no subrogated right to costs awards under section 84(1) of the Insurance (Vehicle) Act.  Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, taking an opposite view of this issue.
In this week’s case (Habib v. Jack) the Plaintiff was injured while riding on a bus.  She sued the bus driver and bus company but had her claim dismissed at trial.  The Defendant was awarded costs with Madam Justice Ross giving ICBC the benefit of this costs award.  The Court provided the following brief reasons:
In the result, the defendants will have their costs. Under s. 84(1) of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231, the Insurance Corporation of British Columbia (“ICBC”) is subrogated to its insured and is entitled to recover the costs to which the insured would be entitled. Accordingly, ICBC is entitled to recover the costs awarded to the defendants.
Given the contradictory recent court findings on this issue I suspect the BC Court of Appeal will be asked to weigh in on the topic of insurers subrogated rights to costs following the successful defence of a lawsuit.

$70,000 Non-Pecuniary Assessment for Mandibular Fracture

Written by admin on . Posted in ICBC Dental Injury Cases, Uncategorized. 58 Comments on $70,000 Non-Pecuniary Assessment for Mandibular Fracture


Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for a mandibular fracture.
In this week’s case (Besic v. Kerenyi) the Plaintiff alleged he was assaulted by the defendant.  After being ‘punched from behind’ the Plaintiff was briefly knocked unconscious.  He suffered a mandibular fracture which needed to be wired shut.  He also lost two teeth.   He went on to suffer permanent nerve damage to his trigeminal nerve which caused numbness and drooling.
In assessing non-pecuniary damages at $70,000 Madam Justice Russell provided the following reasons:

[13] There is no doubt that Mr. Besic’s life has been altered by this incident.  He had to undergo surgery to repair the fracture and his jaw was wired shut for over a month.  He was placed on a liquid-only diet and, consequently, experienced some short-term weight loss.

[14] The long-term consequences have been more severe.  Two of Mr. Besic’s left molars were knocked out.  He has not had the recommended dental repair performed so the gaps in his mouth are still there, eight years later.  He either has to undergo surgery, risking further nerve damage, or live without these two teeth for the remainder of his life.

[15] The mandibular fracture caused permanent damage to the trigeminal nerve. As a result, Mr. Besic experiences numbness in his chin, lips and jaw.  This causes him to drool while he eats and is a source of embarrassment.  He does not notice if food has dripped, or become stuck, on his face because he cannot feel it.  He finds himself constantly wiping his face in an attempt to ensure no food is lingering there.

[16] The nerve damage has caused a prickling pain in his face and jaw.  Both this and the numbness are unlikely to improve.  There is also a possibility that a future facial injury could cause the numbness to worsen.

[17] Since the incident, Mr. Besic finds that he has issues with his speech.  Occasionally, he will slur his words or mumble, particularly when he becomes tired or is out in the cold.  He believes that this is as a result of the numbness, although his neurologist, Dr. Frank Kemble, has questioned whether that is, in fact, the cause.

[18] The mumbling is also a source of social awkwardness, especially at his work at the North Fraser Pre-Trial Center in Surrey, where he is a correctional officer.

[19] Mr. Besic still experiences pain in his jaw joints and muscles, as well as neuropathic pain.  His jaw is often stiff, particularly in the morning.  His temporomandibular joint clicks and pops, especially when he eats.  This results in discomfort and headaches. Mr. Besic also suffers extreme ear pain when he flies…

[34] I find $70,000 to be an appropriate amount for Mr. Besic’s injuries.  While Mr. Besic does not suffer from a deformity of the jaw or dramatic weight loss, like the plaintiff in Pete, he does suffer from some similar injuries, such as numbness in the face and jaw, as well as jaw pain.  He also experiences the resulting social embarrassment these injuries cause.

Sex Abuse Class Action Not Certified Due To Limitation Period Concerns for Victims

Written by admin on . Posted in Sexual Assault Civil Cases, Uncategorized. 54 Comments on Sex Abuse Class Action Not Certified Due To Limitation Period Concerns for Victims

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, highlighting the important benefits of BC’s open ended limitation period for victims of sexual abuse.
In this week’s case (Lakes v. MacDougall) the Defendant worked as a correctional guard in BC’s prison system for over 20 years.  During this time he sexually abused a number of convicts.  He was criminally convicted for these deeds.  He was also successfully sued by some of his victims.
The Plaintiff, an alleged victim of this abuse, sued the Defendant and the Province of BC alleging the Province was vicariously liable for the abuse.  He proposed to make his lawsuit a class action on behalf of all of the Defendant’s victims.  The Province of BC agreed that a class action was appropraite.  The Plaintiff and the Province asked the Court to certify a class action and further to approve a settlement process which would permit the victims to seek compensation by way of private arbitration.
One of the Defendant’s alleged victims opposed class action certification.  This individual argued that the proposed settlement method would impose a de facto limitation period for the victims where one otherwise would not exist.  Mr. Justice Grauer agreed and refused to certify the action unless this issue could be addressed.  In doing so the Court provided the following helpful reasons:
[14] The objections can be succinctly stated.  By definition, members of the proposed class are persons who have spent time in jail from a relatively young age, have developed drug and alcohol problems, have damaged senses of masculinity, and have maintained their silence for years.  Mr. Lakes has deposed that the sexual abuse he endured caused him a great deal of humiliation and embarrassment that prevented him from coming forward with the information until August 13, 2010, some 30 years after the events occurred.  Precisely because of such problems, the Limitation Act, R.S.B.C. 1979, c. 266, provides in s. 3(4)(l) that causes of action based on sexual assault are not governed by a limitation period and may be brought at any time.  Yet the certification of this action and approval of the settlement will deny the benefit of this provision to members of the class who have not yet come to a place where they are capable of disclosure.  Instead, their claims will become effectively barred by the expiry of the claims period.  This is particularly troublesome, it is suggested, because this population is not one known for reading newspapers, where notices of the settlement are to be published…

[22] As I see it, the question is whether the loss of that benefit in this particular case is appropriately balanced by the gains offered by certification and approval of the settlement.

[23] I have concluded that, in the circumstances before me, it is not, and accordingly this requirement has not been met.  The advantage to potential members of the class of the resolution of the single common issue, together with the efficiencies of the process, do not match the loss to this particularly vulnerable group that will arise from the imposition of a six-month claims period.  I do not say that such a balance cannot be achieved in relation to MacDougall’s victims.  I say only that it has not been achieved.  If the process were structured differently to allow for a significantly longer claims period and improved notification procedures, I might well take a different view.  I do not, of course, have the authority to alter the terms of the proposed settlement…

[24] In these circumstances, I exercise my discretion under s. 5(6) of the Class Proceeding Act, and direct that the plaintiff’s applications be adjourned to permit the parties to engage in further negotiations and amend their materials if they choose to do so.

$80,000 Non-Pecuniary Award for Chronic Shoulder Injury; Bradley v. Groves Applied

Written by admin on . Posted in ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, Uncategorized.

Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, assessing damages for a shoulder injury caused by a motor vehicle collision and subsequently aggravated by an at-work incident.
In last week’s case (Kaleta v. MacDougall) the Plaintiff was injured in a 2008 collision.  Fault was admitted by the Defendant.  As a consequence the Plaintiff suffered from “chronic neck and left shoulder pain”.  The symptoms were due to soft tissue injury and there was a “moderate probability” for long lasting symptoms.
Prior to trial the Plaintiff aggravated his shoulder in an at-work incident.  He made a WorkSafe Claim as a consequence.  ICBC argued the damages need to be reduced as a result.  Mr. Justice Truscott disagreed relying on the BC Court of Appeal’s decision Bradley v. Groves.  In assessing damages at $80,000 the Court provided the following useful comments:

[33] In Dr. McAnulty’s last assessment on March 3, 2011 the plaintiff again reported with chronic neck and left shoulder pain, worse at night. His prior knee and back pain had resolved.

[34] Dr. McAnulty’s diagnostic impression at the time was of chronic myofascial pain post motor vehicle accident affecting the left neck and shoulder and the plaintiff was advised to continue with activity as tolerated.

[35] In his summary and conclusions in his report of March 6, 2011, Dr. McAnulty says that despite the many interventions the plaintiff still remains symptomatic and now has more likely than not reached the point of maximum medical improvement, especially since two and one-half years have elapsed since the motor vehicle accident. He says the plaintiff may well suffer chronic myofascial pain in the future…

[57] I accept the opinion of Dr. McAnulty that the workplace shoulder injury of June 11, 2009 was an aggravation of the shoulder injury suffered in the motor vehicle accident which remained symptomatic, and was not a new injury unconnected to the previous injury…

[61] As a matter of law the defendant remains responsible for continuing problems with the left shoulder after June 11, 2009 (Bradley v. Groves, 2010 BCCA 361)…

[63] It may be concluded from all this that the prospect of a chronic injury in the nature of a permanent or indefinite injury is only a possibility, but in Dr. McAnulty’s report he also says that the patient has more likely than not reached the point of maximal medical improvement and that statement reflects a standard of probability and not possibility.

[64] It is my conclusion that Dr. McAnulty considers the shoulder pain to be a chronic or long-lasting pain as a moderate probability, and I will assess the plaintiff’s damages on that basis…

[70] I award the plaintiff $80,000 for general damages for pain and suffering and loss of enjoyment of life.

$200,000 Non-Pecuniary Damage Assessment in Jay Walking Collision

Written by admin on . Posted in ICBC Brain Injury Cases, ICBC Chronic Pain Cases, ICBC Liability (fault) Cases, ICBC Pelvis Injury Cases, ICBC Spine Injury Cases, Uncategorized.


Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dealing with fault for a collision involving a jaywalking pedestrian.
In last week’s case (Wong-Lai v. Ong) the elderly Plaintiff and her husband where involved in a serious collision in 2009.  It was a dark and rainy Vancouver Autumn evening.  As they crossed the street to return to their car they were struck by a vehicle driven by the Defendant.  The Plaintiff was not in a marked cross-walk at the time.  Her husband died and the Plaintiff suffered severe injuries.
The Court found that while the Plaintiff was jay-walking she should have been visible to the Driver.  The Court found that the driver was not paying sufficient attention and assessed him 25% at fault.  In reaching this conclusion Mr. Justice Sewell provided the following reasons:

[56] I have concluded that Mr. Ong must bear some of the legal responsibility for the accident.  The law is well-settled that a driver of a vehicle owes a duty to keep a proper lookout and to avoid exercising his or her right of way in the face of danger of which he or she was or ought to have been aware.  In some cases the expression used is that that person must avoid dangers of which he or she was aware or which were reasonably apparent.  I do not think that the defendant in this case can avoid liability merely because he did not see Ms. Lai before impact.  The critical question is whether he ought to have seen her or, in other words, whether her presence was reasonably apparent at a point when Mr. Ong could have taken steps to avoid running her down.

[57] Drivers of motor vehicles are not to be held to a standard of perfection.  However I do not think that the possibility that persons may be crossing a highway at a point other than a crosswalk or intersection is so remote that a driver has no duty to take it into account in keeping a lookout.  The evidence in this case persuades me that Mr. Ong was not keeping a proper lookout immediately prior to the accident.  His own evidence is that he was not looking forward.  While it is perfectly permissible and prudent for a driver who is changing lanes to do a shoulder check I think it is also incumbent on such a driver to take the steps necessary to ensure that it is safe for him to do so.

[58] I have also concluded that Mr. Ong was probably concentrating on the manoeuvre of changing lanes and on the parked car in front of him to the exclusion of keeping a proper lookout.  I therefore find that Mr. Ong was negligent and that the defendants must bear some portion of the liability for Ms. Lai’s injuries…

[64] In all of the circumstances I find that Ms. Lai is 75% liable for the accident that occurred and Mr. Ong 25%.  Ms. Lai is therefore entitled to recover 25% of the damages she suffered as a result of this tragic accident.

The Plaintiff’s damages were assessed at just over $307,000.  $200,000 of this assessment were for the Plaintiff’s non-pecuniary loss.  In arriving at this figure Mr. Justice Sewell provided the following summary of the Plaintiff’s injuries:

[65] In this case Ms. Lai suffered very grievous injuries. She was struck by a car which I have found to be travelling at close to 60 kilometres per hour.  A good summary of her injuries is found in the report of Dr. Ng.  It is as follows:

1) Gross bleeding from urine requiring emergency urological consultation. A CT cystogram ruled out bladder rupture. Ct scans of the kidneys did not show any severe renal damage and she only required observation and support. However angiogram showed the pelvic fractures has ruptured blood vessels and she had bleeding in the blood supply to the pubic bone and these required embolisation to stop the bleeding.

2] Cervical Cl C2 unstable fracture. This required immobilisation and stabilisation in a collar and traction for the first eight weeks. She also has a moderate central cervical disc protrusion at level C6-7 which indented her cervical spinal cord.

3] Chest contusions left upper lobe, right middle lobe, and multiple rib fractures of the left 3 to 6 ribs and left 8 rib.

4) Multiple pelvic comminuted fractures bilaterally, namely superior and inferior pubic rami. She required immobilisation for her neck and leg fractures as well as for these fractures for the first eight weeks. She remained in the intensive care unit for a few weeks for treatment and stabilisation of all her injuries.

5) The left Tibial and left Fibular fractures require manual reduction and internal fixations on December 1, 2009. She returned to the intensive care unit post operatively.

6) Brain injury, which on CT scan showed multiple bleeding present inside areas of her brain and a small subdural hematoma (within the skull but outside the brain), located in between the cerebral hemispheres. There is a large left scalp hematoma. Her conscious levels and neurological state were monitored in intensive care over the next few weeks

…

[83] In my view the most important factors in this case are the severe and painful injuries suffered by Ms. Lai, the marked degree of permanent disability, the loss of independence and the increased risk of morbidity and mortality identified in Dr. Guy’s opinion.  I also note that Ms. Lai’s stoicism and determination to make the best of her predicament should not diminish the amount of damages awarded to her.

[84] I have reviewed the numerous decisions on pecuniary damages involving serious injuries cited to me by counsel.  These cases are all of course fact specific.  My review of them, coupled with a consideration of the principles restated in Stapley, leads me to conclude that an award of non pecuniary damages in the amount of $200,000 is appropriate in this case.

"Investigative Stage" Trumps ICBC's Litigation Privilege Claim

Written by admin on . Posted in BCSC Civil Rule 7, Uncategorized.


Given ICBC’s monopoly over vehicle insurance in BC they typically have to perform multiple roles following a collision including investigating the issue of fault in order to make internal decisions regarding the premium consequences for the customers involved in the crash.  Documents prepared during this ‘investigative‘ stage generally need to be produced during litigation and claims for litigation privilege will fail.  Reasons for judgement were released this week further demonstrating this fact.
In this week’s case (Fournier v. Stangroom) the Plaintiff was injured in a 2007 collision.  In the early days following the crash and well before litigation got underway ICBC retained an engineering firm to inspect the Plaintiff’s vehicle.  The engineering firm communicated their findings to ICBC.  In the course of the lawsuit the Defence lawyer commissioned an expert report from the same firm but did not exchange it with the Plaintiff’s lawyer.
The Plaintiff made the typical document disclosure demands from the Defendants.   These were not complied with in a satisfactory fashion resulting in a Court application.   The Defence lawyer argued that the full file from the engineering firm is subject to litigation privilege.  Master Caldwell disagreed and ultimately ordered better document disclosure inlcuding production of the engineering firms materials documenting their initial investigation.  In making this order Master Caldwell provided the following reasons:




[11] On August 9, 2007 the initial adjuster on the file requested MEA or one of their engineers to examine the plaintiff’s vehicle in order to determine whether the plaintiff was wearing his seatbelt at the time of the collision. The engineer did so, communicated with the adjuster the following day with questions and subsequently reported to the adjuster on September 13, 2007. That adjuster referred to that report as being sufficient for his purposes; the next adjuster, Ms. Madsen referred to the “verbal report” as being “sufficient for the purposes of handling the claim SHORT OF LITIGATION” (emphasis mine).

[12] In early 2011 defence counsel commissioned MEA to prepare an expert report, apparently regarding the seatbelt issue, for possible use at trial; he says that since such a report has now been requested, the engineer’s file material, notes and such are not producible unless and until the report is received and provided to plaintiff’s counsel 84 days before trial.

[13] In cases such as this one, the adjuster or adjusters have duties of investigation on behalf of both the plaintiff and the defendants; there must, almost of necessity, be an initial period of adjusting or investigating to discover the factual matrix within which the adjusters will perform their duties and assess the file and the claims or roles of the interested parties. Absent such period and process of investigation the adjuster can have no reasonable basis upon which to conclude that there is a reasonable prospect of litigation and that all or part of what is done from any given point in time forward is done for the dominant purpose of litigation. In this regard see Hamalainen (Committee of) v. Sippola (1991) 62 BCLR (2d) 254 (BCCA).

[14] These engineers were approached within the first 3 weeks following the collision, clearly within the period of initial investigation and was even seen by at least one of the adjusters as being used for purposes of handling the file short of litigation. The investigative material, notes, correspondence and other such recordings of the engineers were not created at a time when litigation was a reasonable prospect; neither were they created for the dominant purpose of litigation. The fact that counsel has now requested an expert report from MEA does nothing to change that any more than a request to a G.P. or plaintiff’s medical expert that he or she provide an expert report renders that practitioner’s clinical records privileged.

[15] The MEA investigative material, notes, correspondence and working papers which arose between August 9, 2007 and September 13, 2007 inclusive are not subject to a valid claim of litigation privilege; they are ordered to be listed and to be produced to plaintiff’s counsel within 14 days. If there are any other MEA materials which arose between September 14, 2007 and the date when defence counsel commissioned their expert report, those are to be listed with the required clarity, date and description in order that any further claim of litigation privilege can be properly assessed.





$80,000 Non-Pecuniary Damage Assessment for C3-4 Disc Injury With Neuropathic Pain

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Spine Injury Cases, Uncategorized.


Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, awarding global damages of just over $90,000 as a result of injuries sustained in a motor vehicle collision.
In this week’s case (Lorenz v. Gosling) the Plaintiff was injured in 2006 collision.  Fault was admitted.  The Plaintiff’s symptoms included chronic neuropathic pain which was brought on following the collision as a result of “severe narrowing of the cord due to degeneration of the disc and facet joints at the C3-4 level of her cervical spine“.
The 56 year old plaintiff was left with chronic pain and limitations in her vocational and domestic responsibilities.   The Plaintiff was able to continue working despite her pain and nothing was awarded for diminished earning capacity.  Despite this her non-pecuniary damages were assessed at $80,000 with Mr. Justice Verhoeven providing the following reasons:



[30] Dr. Berkman’s opinion was that Mrs. Lorenz was suffering from persistent pain and weakness in her arms, and neck pain, resulting from the accident.  He says that she suffered a “significant injury to her spinal cord at the C3-4 level, with consequential development of neuropathic pain in her neck and upper limbs.”

[31] Dr. Berkman defined “neuropathic” as meaning a change in the perception of pain, and change in the processing of pain by the patient. In his opinion the pain had become “ingrained in her nervous system”.

[32] He suggested pain education, psychological support and occupational therapy.

[33] Dr. Berkman also suggested a consultation with a neurosurgeon in order to consider the advisability of surgery.  In the absence of neurosurgery, he suggested treatment such as Botox or subcutaneous Lidocaine, or a spinal cord stimulator…

[42] On the medical evidence, therefore, I am left with a substantial lack of clarity as to whether the complaints of Mrs. Lorenz are essentially permanent.  Nonetheless, I am obliged to make findings on the evidence as it is.  I conclude that there is a substantial risk that she will not experience a significant improvement in her present symptoms and complaints.  I am unable to find that this is a probable outcome.

[43] There is no question in this case that her complaints arise from the motor vehicle accident…



[97] After considering all of the authorities cited to me, and on the findings that I have made, I consider that the sum of $80,000 represents a fit and proper award for non pecuniary loss in this case.

Why Frequent Doctor Visits Don't Increase The Value of Personal Injury Claims

Written by admin on . Posted in ICBC Soft Tissue Injury Cases, Uncategorized. 50 Comments on Why Frequent Doctor Visits Don't Increase The Value of Personal Injury Claims


As previously discussed, frequent doctor visits in and of themselves add no value to a personal injury claim.  Seeing a doctor simply to ‘paper’ a personal injury claim really does nothing to add to the amount of compensation a claimant is entitled to receive not to mention that it creates a costly and unnecessary burden on the medical system.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating that medical visits to address ‘inconsequential‘ matters with a view to assisting a personal injury claim are frowned upon.
In this week’s case (Hough v. Wyatt) the Plaintiff was involved in a 2009 collision.  He sued seeking over $350,000 in damages.  The Court largely rejected the Plaintiff’s claim finding that while the collision did cause some injuries these were little more than a ‘minor degree‘ of aggravation of pre-existing injuries.  Non-Pecuniary damages of $15,000 were assessed.
In the course of the judgement Madam Justice Stromberg-Stein had provided the following critical comments:
[9] Mr. Hough was a very difficult witness. He is a poor historian, which is understandable given his extensive medical history. However, he bears the burden of proof. He was argumentative, abrasive, sometimes rude, often unresponsive, and many times inconsistent in his evidence. Mr. Hough clearly demonstrates an attitude of entitlement to insurance benefits, at one point indicating he doesn’t understand the problem here, it is only insurance money. He reports everything, no matter how inconsequential, even a broken fingernail, so if there is a problem in the future, he can get compensation. The trouble for Mr. Hough is he was a medical disaster before the accident, and the defendant is not obliged to pay for all that ails him or ailed him. Mr. Hough’s pre-existing medical condition, his original position, as outlined in the evidence of Dr. Waiz, and what Mr. Hough can recall, would have manifested debilitating effects in any event, regardless of the accident. His original condition would have detrimentally affected him even absent the defendant’s negligence. The defendant is not required to compensate him for debilitating effects not caused by the accident….
[14] Dr. Waiz’s evidence is unsatisfactory on many levels, not the least of which his manner in which he managed Mr. Hough’s care with increasing doses of narcotics. His records are unreliable. He blames computer programs and computer generated forms. He has been willing to fill out reports to benefit Mr. Hough, for example, claiming all Mr. Hough’s drugs were WCB-related so Mr. Hough could be compensated, and claiming a wrist fracture was a WCB injury due to ongoing weakness and pain in his right leg. This is the same broken wrist that Mr. Hough now claims was caused by the accident for the same reason. Where it has suited Mr. Hough, Dr. Waiz has reported to WCB Mr. Hough is unable to work in any capacity. Now he was reporting to this court that, because of the accident, Mr. Hough cannot work. The concern is he is parroting what Mr. Hough wants him to say.
While it is true that serious injuries warrant higher damage awards than minor injuries and that serious injuries typically result in more medical appointments, the mere number of doctor’s visits in and of themselves do not assist in valuing a personal injury claim.  You can click here for a short discussion addressing the factors Court’s often consider when assessing non-pecuniary damages (money for pain and suffering) in a BC personal injury lawsuit.

Welcome Lawyers Weekly Readers

Written by admin on . Posted in Uncategorized. 45 Comments on Welcome Lawyers Weekly Readers


The Lawyers Weekly published a brief article today naming Canada’s top 24 legal social media influencers.  I’m honoured for the mention and would like to thank Jordan Furlong and Warren Smith for including me on this list.   They humbly did not include themselves but both clearly make the cut.
For those of you visiting this blog for the first time after reading The Lawyers Weekly article, welcome!   Please don’t hesitate to contact me if you have any questions about this blog or my social media involvement.
For you BC lawyers thinking of dipping your toes into the legal blogging waters, you should consider participating in the Courthouse Libraries Practice Portal Legal Blogs.  If you’re interested you can contact Nate Russell for details.

More on Costs and the Flexibility of the New Rules of Court

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9, Uncategorized. 52 Comments on More on Costs and the Flexibility of the New Rules of Court


(Update June 5, 2013- the underlying trial verdict was upheld in reasons for judgement released today by the BC Court of Appeal)
____________________________________________________
As previously discussed, one of the best changes in the New Rules of Court is the ability for trial judges to have discretion in assessing costs consequences where one party bests their formal settlement offer at trial.
Generally where a Plaintiff fails to beat a Defence formal settlement offer they can be punished with a significant costs award.  Fortunately Rule 9-1 does not force a Court to this result and instead leaves some discretion in the process.   This discretion was demonstrated in reasons for judgement released last week by the BC Supreme Court, New Westminster Registry.
In last week’s case (Gatzke v, Sidhu) ICBC, on the Defendant’s behalf, made a formal settlement offer of $50,000.  The Plaintiff proceeded to trial and after a split finding of liability was assessed damages at “an amount to someting less than $10,000“.
ICBC brought a motion to be awarded post offer costs.  Mr. Justice Saunders refused to make this order instead simply ordering that the Plaintiff be deprived of her post offer costs and that the Plaintiff pay the disbursements associated with bringing the Defendant’s IME doctor to trial.  In reaching this result the Court provided the following reasons:

[14] …. Ordinarily, where a plaintiff obtains judgment for less than the amount offered in settlement, the legislative purpose of the Rule would be fulfilled by awarding the defendant its costs from the date the offer was made.  However, where there is a very significant gap between the judgment amount and the offer, it may be the case that a defendant is in a better position for having gone to trial, even taking its counsel’s fees into account.  This appears to have quite possibly been the case in the present circumstances.  The damages assessed, net of the plaintiff’s contributory negligence, are a small fraction of the offer.

[15]Defendants should not be discouraged from making generous settlement offers.  But where the end result is dramatically different than the offer resulting in a net savings to the defendant, a defendant found to be partially at fault can reasonably expect to bear some of the cost of obtaining that result.

[16]The plaintiff apparently has very limited financial means.  This factor, however, will be given the most weight where it is the subject accident, or other issue between the parties, which is responsible for the plaintiff’s circumstances.  That is not the case here.

[17]The defendants, on the other hand, were presumably being defended by the Insurance Corporation of British Columbia.  An insured defendant’s greater financial ability to defend is a factor which was described by the B.C. Court of Appeal in Smith v. Tedford, 2010 BCCA 302, as being a matter “of no small importance to considering whether and to what extend the financial circumstances of the parties, relative to each other, bear on an award of costs”.

[18]This appears to have been a case where both parties undertook a course of action based on an overestimation of the risk to the defendants.  There is no compelling case, in the circumstances, for awarding the defendants the entirety of their post-offer costs.  Given the plaintiff’s financial circumstances and the very modest damages, the purpose of the Rule will be met by awarding the plaintiff 30% of her costs to the date of the offer, and awarding the defendants only the disbursements incurred in association with the attendance at trial of their expert witness, Dr. Sovio.  Dr. Sovio’s attendance at trial was only required for cross-examination at the plaintiff’s request, and it is appropriate that this cost be borne by the plaintiff.  That amount is to be set off against the plaintiff’s award of damages.