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

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.