ICBC Hit With Double Costs Due To Inadequate Settlement Efforts

Reasons for judgement were published today ordering double costs to a plaintiff who was awarded damages substantially above his settlement request following a vehicle injury.

In today’s case (Godbout v. Notter) the Plaintiff was injured in a a vehicle collision that the Defendant was at fault for.  Following an unsuccessful mediation the Plaintiff provided a formal offer to settle his claim for $300,000.  ICBC refused and offered 1/3 of this. At trial the Plaintiff was awarded damages totalling $583,199.36 for non-pecuniary loss, past wage loss, future lost earnings, future care costs, loss of housekeeping capacity and special damages.

The Plaintiff was then awarded double costs for ICBC’s unreasonable refusal to accept the Plaintiff’s settlement offer.  In finding double costs were warranted Mr. Justice Jenkins provided the following reasons:

[14]         The formal offer of January 30, 2017 for $300,000 represents a considerable reduction from the plaintiff’s previous offer made during a mediation totaling over $561,000.

[15]         Based upon the evidence which would have been available to both parties by January 2017, including examination for discovery transcripts, witness statements and the expert reports which had been exchanged by that time and having heard or seen the evidence at trial, the reduction in the plaintiff’s offer was not likely due to weaknesses in the plaintiff’s case. It is more likely that the formal offer represented a serious attempt to resolve the action before trial and to finalize the uncertainty of proceeding with a client who was experiencing PTSD and anxiety and would benefit from closure of the litigation.

[16]         Furthermore, the defence’s response of a counter-offer of $100,000 did not reflect “a careful assessment of the strength or lack thereof of their cases…throughout the course of the litigation” (see Hartshorne at para. 25 citing Catalyst Paper Corp. v. Companhia de Navegaçao Norsul, 2009 BCCA 16 at para.16).

[17]         The defence refers to the decision of Fan (Guardian ad litem of) v. Chana, 2009 BCSC 1497, rev’d 2011 BCCA 516, in which it was stated at para. 19 “…In this regard, Courts must, I think, extend some leeway to litigants holding honest but, ultimately, mistaken views of their claims…”. I agree with that decision, however, the defendant’s counter-offer reflects more of a “nuisance” offer as opposed to an honest assessment of the risk of a much higher judgment. Even if the court had found contributory negligence in a significant proportion, the damages which would have been awarded in that case would most likely substantially exceed the amount of the counter-offer.

[18]         Finally, an award of $300,000 was well within the range of outcomes that could reasonably been expected at trial which involves a reflection of the relative financial circumstances of the parties. At para. 153 and following of the reasons for judgment at trial, I referred to the defence position in his written submissions at para. 76 where it was alleged “…the plaintiff has failed to adduce admissible evidence or a reliable expert opinion on which to gauge that wage loss”, a submission I rejected. There was considerable evidence upon which to gauge a past wage loss including evidence that the plaintiff had worked consistently since high school, including Dr. Dodds’ report and testimony and the fact that the plaintiff was only able to return to part-time work commencing December 2014.

[19]         The evidence revealed that Mr. Godbout was forced to live on savings and the generosity of his life partner and was in a very difficult financial position as of January 2017. Considering the financial circumstances of the plaintiff, those of the defendant’s insurer and the risks of trial, it is reasonable to assume that the defendant was hopeful Mr. Godbout would accept considerably less than what could have been expected as an award at trial due to his financial circumstances.

[20]         I conclude, based upon the circumstances and the considerable law on the issue of double costs, that the offer of $300,000 ought reasonably to have been accepted by the defendant in or about January 2017 and that the plaintiff is entitled to double costs under R. 9-1.