No Costs Consequences With Formal Offer Bested by "Almost Negligible Difference"
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, refusing to award discretionary costs where a defence formal settlement offer was not beat by a plaintiff by an “almost negligible difference“.
In today’s case (Zhao v. Yu) the Plaintiff was injured in a collision and sued for damages. Prior to trial the Defendant issued a formal settlement offer of $93,500. The Plaintiff declined and proceeded to trial where damages of $91,700 were assessed. The Defendant asked for trial costs but the Court dismissed the application finding it was not unreasonable for the plaintiff to reject the offer and proceed to trial. In reaching this decision Madam Justice Baker provided the following reasons:
 While in hindsight the Defendant’s Offer was indeed reasonable, that is not the test. Rule 9-1(5) and 9-1(6) were not intended, in my view, to punish parties merely because the party’s assessment of the value of the claim proves incorrect, unless that assessment was based on irrelevant considerations; a clearly inadequate review of the available evidence and applicable authorities, or was, in view of the facts known at the time, unreasonable.
 Here, the parties differed, as did some of the expert witnesses, about the Plaintiff’s prognosis; and the extent to which the injuries resulting from the accident, would affect his capacity to earn income in future. While the Plaintiff did not succeed on this issue, I cannot say it was unreasonable for him to pursue the claim; or to believe that there was some prospect of success, even if there was a risk he would not succeed. I note also the Plaintiff’s submission, which I consider persuasive, that even a slightly higher award for special costs or non-pecuniary damages would have resulted in an awarded that exceeded the Defendant’s Offer.
 Having weighed the relevant factors, I am satisfied that this is a case in which I should award the Plaintiff the costs of the entire action, including all steps taken after the date of delivery of the Defendant’s offer, notwithstanding the Defendant’s Offer.