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Jury Trials and Your ICBC Injury Claim

Written by admin on . Posted in Civil Procedure, Jury Trials. 121 Comments on Jury Trials and Your ICBC Injury Claim

Personal Injury Trials carry a certain element of risk with them.  Typically there are 2 competing medical theories with respect to the extent of injury and connection to trauma.  Additionally there is often disagreement as the value of damages for these injuries by the lawyers involved regardless of which sides medical evidence is accepted.  Furthermore a certain injury can be valued differently by different judges but varying results may be acceptable provided the compensation rests within the conventional range of damages for similar injuries.  All of this adds to the risk of trial and the difficulty of attaching a specific value to any given ICBC claim for pain and suffering.
Injuries can best be valued in ranges and the best one can do to determine the likely range of an ICBC pain and suffering claim is to look to previous court judgements for guidance.   Judges have to give reasons for their verdict, summarize the evidence they accept and award a specific figure for non-pecuniary loss.  If you look up enough similar cases you may be able to come up with a range of potential damages for pain and suffering for categories of injuries.  (click here for a previous discussion of some of the factors that go into valuing pain and suffering in BC tort claims)
Jury trials carry an additional element of risk in BC Personal Injury Claims.   One of the main reasons why jury trials are less predictable than judge alone trials is because jurors are not permitted to be given a range of damages for non-pecuniary loss by the lawyers arguing the case.  The BC Court of Appeal imposed this restriction on lawyers and this remains the law in BC.
In your typical ICBC claim that heads to trial with a jury 8 members of the public with little or no experience attaching a dollar figure to pain and suffering will be asked to value a Plaintiff’s injury.  These 8 members of the public will not be given guidance from the Court or from the lawyers involved as to what an appropriate range of damages is.  This may sound strange but its true.  Without referencing precedent its easy to understand how different juries can have wild swings in the amount of money they award a plaintiff for pain and suffering in an ICBC injury claim.
Reasons for judgement were released today by the BC Supreme Court illustrating the type of low award juries can award in ICBC Claims.
In today’s case (Cairns v. Gill) the Plaintiff sued for damages as a result of a 2005 BC Car Crash.  Madam Justice Gill, the presiding trial judge, summarized the evidence led by the Plaintiff at trial as follows:

[3]           The injuries sustained by the plaintiff were, in a relative sense, of a minor nature.  Ms. Cairns testified that her neck was sore immediately after the accident and she developed a headache.  By the next day, she also had pain in her shoulders.  She went to a drop-in clinic and was given a referral to massage therapy, but she did not attend because such therapy had not assisted in the past.  Some time after the accident, she began to feel pain in her low back.  It was Ms. Cairns’ evidence that her headaches lasted for several months and her neck and shoulder pain persisted for approximately one year.  Her low back pain resolved approximately a year and a half after the accident.  As to the frequency of her pain over the periods in question, she testified that she had pain on a daily basis for one or two weeks and thereafter, it came and went.

[4]           Ms. Cairns testified that her injuries precluded her from engaging in certain activities such as walking, running and attending aqua fit classes and affected her ability to lift and carry.  Her inability to engage in pre-accident activities also led to weight gain.  At the time of the accident she was employed at The Brick and was attending university.  It was her evidence that she missed two days from work, one immediately after the accident and the second, some time later. 

 In today’s case the jury awarded a mere $500 for the Plaintiff’s pain and suffering.  Granted it is unknown whether the jury accepted or rejected the Plaintiff’s evidence of injury, however, assuming it was accepted one would be hard pressed to find a judgement this low by a BC Supreme Court judge for similar injuries.

Perhaps if the jury was given a range of damages for similar injuries the Plaintiff would have received a better result.  Perhaps if the jurors knew what was typically awarded for such injuries their award would have been in the more conventional range.   Maybe none of this would have made a difference in the Plaintiff’s case but it just seems to make good sense to let juries have the same information judges have when it comes to valuing pain and suffering.  What are your thoughts?

ICBC Claims, Pre-Trial Costs and Rule 66

Written by admin on . Posted in Civil Procedure. 74 Comments on ICBC Claims, Pre-Trial Costs and Rule 66

If you are involved in an ICBC claim under the fast track rule in BC Supreme Court (Rule 66) and settle your claim prior to trial how much are you entitled to for pre-trial Tarriff Costs?
Rule 66(29) governs and reads as follows:

Costs

(29)  Unless the court orders otherwise or the parties consent, and subject to Rule 57 (10), the amount of costs, exclusive of disbursements, to which a party is entitled is as follows:

(a) if the time spent on the hearing of the trial is one day or less, $5 000;

(b) if the time spent on the hearing of the trial is more than one day, $6 600

On the face of it, it appears that when a case settles pre trial up to $5,000 in costs could be included. However, recent court cases have applied a restrictive interpretation to this rule limiting the amount of pre-trial costs available in a Rule 66 action.   These cases have limited the amount of pre-trial costs available to $3,400.  Today, a case from the BC Supreme Court, Vancouver Registry, was released confirming this restrictive interpretation.

In today’s case (Cathcart v. Olsen) the Plaintiff settled her claim pre trial for an amount plus Tarriff costs.  At issue was how much should be paid for pre-trial Tarriff Costs.  Registrar Sainty of the BC Supreme Court,  in finding that the plaintiff was entitled to $2,890 in tarriff costs summarized the law and reasoned as follows:

[12]        The defendants argue that costs ought to be assessed as a proportion of the maximum allowable for pre-trial preparation under Rule 66, being $3,400. That proportion they say ought to depend on at what the stage in the proceedings the matter settled and how much pre-trial work remained to be done had the matter not settled. This, the defendants argue, is the required result applying the decision of Pittfield, J in Bowen v. Martinec, 2008 BCSC 104. In that case His Lordship was asked to answer the following question:

Where a formal offer to settle made under Rule 37 of the Rules and in Form 64 is accepted before trial in an action to which Rule 66 of the Rules applies, are the costs in the action assessed by reference to the fixed scale of costs under Rule 66(29) of the Rules or by reference to Appendix B to the Rules?

[13]        In answering the question put to him, His Lordship reviewed the law including the decisions of Macaulay, J in Duang and the Court of Appeal in Anderson (both supra) and held:

[21       In my opinion, the principles that can be derived from Duong and Anderson should be applied in the determination of costs in circumstances where an offer has been accepted before the commencement of trial. It is evident from Rule 66 that a cap has been imposed upon the recovery of costs in an action to which the Rule applies. It is also clear that the court can give effect to Rule 37 offers to settle. I am unable to identify any reason why the Rule 66 regime should apply in respect of the determination of costs following a trial where offers to settle have been made and rejected, but those situations where an offer is made and accepted before trial should justify taxation under Appendix B.

[22]      I adopt the view expressed by Macaulay J. which is that the amount of recoverable costs stipulated in Rule 66 should be allocated in part to trial and in part to pre-trial preparation. The part allocable to trial should be determined by deducting the global costs contemplated in respect of a one-day trial from the global costs contemplated in respect of a two-day trial. The costs for pre-trial preparation in either case should be determined as the difference between the global cost amount for a one-day trial and the daily trial costs. As the Rule presently stands, the recoverable costs per day of trial are $1,600, and the recoverable costs attributable to pre-trial preparation, $3,400.

[14]        His Lordship then stated:

[24]      It will be incumbent upon the parties to agree on the proportion of the pre-trial preparation which had been undertaken by the plaintiff to the date of the defendant’s offer to settle. In the absence of an agreement, the parties may resolve differences on taxation, whereupon the court will exercise the discretion conferred upon it by Rule 66(29.1).

[25]      It follows that the answer to the stated case is that costs in an action subject to Rule 66, settled before trial pursuant to an offer of settlement must be assessed by reference to the fixed scale of costs under Rule 66(29), and not by reference to Appendix B to the Rules of Court.

[15]        Essentially Pitfield J’s decision mandates that, where a formal offer to settle has been made in accordance with the Rules, pre-trial costs are to be based on the proportion of pre-trial preparation that has been undertaken up to the date of the offer to settle and the party to whom costs are to be paid is entitled to its proportionate share of the $3,400 cap. Mr. Chaudhary, for the defendants, argues that the same principles ought to apply in these circumstances where, although no formal offer to settle was made, an informal settlement was reached. He submits that I ought not to deviate from the methodology proposed by Pitfield, J. in Bowen (supra).

[16]        Mr. Harbut, for the plaintiff, suggests however that Pitfield, J’s decision in Bowen cannot be reconciled with the decision of the Court of Appeal in Anderson.  He submits Anderson should be read to say that, while there is a ceiling in the amount of costs that a successful litigant may be awarded, where a Rule 66 action has been settled, provided the party whose costs are being assessed can satisfy the assessing officer that that party would be entitled, under Appendix B of the Rules, to at least the amount of the ceiling ($3,400) in tariff items then that party is entitled to be awarded the full amount of that ceiling. I cannot agree with this latter submission. In my view, I am bound to employ the same reasoning as that employed by Pitfield, J in Bowen to these circumstances; i.e. award the plaintiff his proportionate share of the cap, based on the stage of preparation reached as at the date of the offer to settle.

[17]        That being said, there is one additional issue which must be considered. In Anderson, the Court of Appeal states (at ¶47):

I also agree with Macaulay, J that the intent of the rule [Rule 66] was to avoid the necessity of a taxation and that it would frustrate that intent to order a taxation of costs under the rule…

[18]        Accordingly, the Court of Appeal has endorsed the presumption that the intent of Rule 66 is to avoid the necessity of an appearance before the registrar to assess costs. Pitfield, J’s method – to determine costs dependant on the stage of the pre-trial preparation – seems to me to invite assessments, rather than reduce them. I say this as, in instances where the parties cannot agree on the proportion of work undertaken at the time of settlement, taxation becomes the likely, rather than the unlikely, course.

[19]        To counterbalance this, however, I believe that the Court of Appeal in Anderson has also endorsed a somewhat “rough and ready” manner of assessing the consequences of accepting an offer to settle when the provisions of Rule 66 apply (see paragraph 49). The Court of Appeal suggests that an assessing officer, on an assessment of costs in similar circumstances, should use a rough and ready approach to establish what stage the proceeds were at when settlement was reached in deciding what proportion of the “cap” ought to be paid. That rough and ready approach (and the one I will employ here), in my view includes both a consideration of the work done to the date of settlement by the party to whom the costs are to be paid as well as a consideration of what costs the payee might be entitled to under the tariff if costs were awarded under Appendix B of the Rules.

[20]        Mr. Harbut stated that his pre-trial preparation had progressed to a great extent when the offer was accepted. He confirmed that the items that had been undertaken included commencing the action, discovery of documents, some examinations for discovery, settlement negotiations and production of expert reports. He argued that, with the exception of the actual trial, most of the trial preparation had been completed. Thus the plaintiff should be awarded substantially all of the amount of the cap.

[21]        Mr. Chaudhary in his submissions set out a number of items that remained to be done (additional document discovery, witness preparation, further expert’s reports, to name a few) and argued that as this action settled some four months before trial a substantial amount of work remained to be done and the proportion awarded should reflect that.

[22]        Here, I am satisfied that some 85% of the work required to prepare for trial had been done up to the date that the offer was accepted. Accordingly, the plaintiff is entitled to $2,890 in “tariff” costs plus applicable taxes, together with such disbursements as have been agreed between the parties. In my view a substantial amount of work had been done to prepare for the trial. In addition, had the costs been awarded under Appendix B of the tariff the plaintiff would likely have received at least 10 units under item 1B, 2 to 3 units under item 3, 2 to 3 units each under items 7 and 8, 4.5 units under items 14 and 15, 2 or 3 units under each of Items 13A and 13B, plus 5 units for item 34 resulting in, on a rough and ready calculation, of some 31 to 35 units, well within or certainly more than I am awarding in these circumstances.

[23]        If the parties require a certificate they may prepare it, each sign it and forward it to me for my signature.

One More Rule 37B Case

Written by admin on . Posted in Civil Procedure, Uncategorized. 55 Comments on One More Rule 37B Case

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, giving more interpretation to Rule 37B in ICBC Injury Claims (click here to read my previous posts on this topic).
In today’s case (Smagh v. Bumbrah) the Plaintiff was injured in a 2004 motor vehicle crash.  The defendant made an offer to settle the case for $20,000 plus costs and disbursements in 2006.  This offer was rejected and the plaintiff proceeded to trial.  After a 10 day jury trial in early 2009 damages of $2,200 were awarded.
The defendant applied for double costs from the date of the offer onward.  Mr. Justice Kelleher refused to grant this motion however he did award the Defendant costs from the date of the offer onward.  In doing so he made the following observations about Rule 37B:

[7]                Rule 37B came into force in July 2008.  It is common ground that Rule 37B applies, even though the offer was made before Rule 37B came into effect.  Subrules (4), (5), and (6) are relevant here:

Offer may be considered in relation to costs

(4)        The court may consider an offer to settle when exercising the court’s discretion in relation to costs.

Cost options

(5)        In a proceeding in which an offer to settle has been made, the court may do one or both of the following:

(a)        deprive a party, in whole or in part, of costs to which the party would otherwise be entitled in respect of the steps taken in the proceeding after the date of delivery of the offer to settle;

(b)        award double costs of all or some of the steps taken in the proceeding after the date of delivery of the offer to settle.

Considerations of court

(6)        In making an order under subrule (5), the court may consider the following:

(a)        whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered or on any later date;

(b)        the relationship between the terms of settlement offered and the final judgment of the court;

(c)        the relative financial circumstances of the parties;

(d)        any other factor the court considers appropriate.

[8]                Here the defendant seeks an award of double costs pursuant to Rule 37.  I turn to the considerations in Rule 37B (5)(b) and (6).

(a)        Whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered or on any later date.

[9]                The plaintiff argues that, at worst, costs should only be awarded to the defendant commencing November 6, 2008.  That is when the defendant forwarded the report of Dr. Matushak, an orthopaedic surgeon who conducted an independent medical examination and whose report was not favourable to the plaintiff.  Before that time the plaintiff had the reports of her family doctor and two specialists.  All three of these physicians were supportive of her claim that her symptoms were related to the accident.

[10]            The difficulty with this submission is that these three reports were based on an acceptance of what the plaintiff told them.  Simply put, the jury did not believe what these physicians believed.

[11]            I conclude that the offer ought reasonably to have been accepted one week after it was made. 

(b)        The relationship between the terms of the settlement offered and the final judgment of the court

[12]            This factor favours an award of costs to the defendant.  The jury awarded an amount substantially less than the defendant’s offer.

[13]            However, this factor is not in itself determinative.  Decisions on damages by juries are somewhat more difficult to predict than assessments by judges.  Madam Justice Humphries put it this way in Lumanlan v. Sadler, 2009 BCSC 142, [2009] B.C.J. No. 224, at para. 35:

As well, an assessment of non-pecuniary damages, as every trial judge knows, is a difficult and somewhat subjective task, as hard as one tries to be consistent with other judgments.  A jury verdict can, of course, be even more disparate when compared to assessments by judges.

[14]            I agree with counsel for the plaintiff that the court should be cautious in placing too much weight on this factor.

(c)        The relative financial circumstances of the parties

[15]            The plaintiff is in difficult financial circumstances.  There is no evidence regarding the defendant’s financial position.  Counsel for the plaintiff argues that it is appropriate to consider the relevant circumstances of Ms. Smagh and the Insurance Corporation of British Columbia, which defended the action on the plaintiff’s behalf.  She relies on Radke v. Parry, 2008 BCSC 1397, 64 C.P.C. (6th) 176, where Madam Justice Boyd made note of the “substantial disparity in financial circumstances between the parties”: at para. 42.  Her Ladyship went on to state at para. 42:

The defendants, represented by ICBC, had substantially greater resources to finance a trial than the individual plaintiff.

[16]            A different view was expressed in Bailey v. Jang, 2008 BCSC 1372, 63 C.P.C. (6th) 291, where Hinkson J. made the following comments:

[32]      Second, [the plaintiff] places her financial position against that of ICBC, as opposed to that of the defendants.

[33]      While I accept that it is likely that most drivers in British Columbia are insured by ICBC, the wording of subrule 37B does not invite consideration of a defendant’s insurance coverage.  There may be good policy reasons for this.  Insurance coverage limits with ICBC are not universal, and will vary from insured to insured.  Certain activities may result in a breach of an individual’s insurance coverage, or the defence of an action under a reservation of rights by ICBC.  A plaintiff will not and likely should not be privy to such matters of insurance coverage between a defendant and ICBC.

[34]      The contest in this case was between the plaintiff and the defendants, and the insurance benefits available to the defendants do not, in my view, fall within the rubric of their financial circumstances, any more than any collateral benefit entitlement that a plaintiff may have would affect that person’s financial circumstances for the purpose of determining their loss.

[17]            In Abma v. Paul, 2009 BCSC 60, [2009] B.C.J. No. 87, Madam Justice Gropper agreed with the reasoning in Bailey.  She distinguished the different circumstances in Radke, where the defendant accepted the plaintiff’s offer after 11 days of trial.

[18]            The decision in Bailey was also followed in Kanda v. Jackson (19 December 2008), Vancouver M030259 (S.C.)).

[19]            Although the matter is not settled, the emerging consensus appears to be that the financial position of ICBC is not determinative.  As Butler J. said in Arnold v. Cartwright Estate, 2008 BCSC 1575, 86 B.C.L.R. (4th) 99, at para. 23:

[T]here will always be a substantial difference between the relative financial circumstances of the usual personal injury plaintiff and the defendant’s motor vehicle insurer.  That difference, in and of itself, is not enough for the Court to exercise its discretion to deprive the defendant of costs.  If that was the intent of the new rule, it would have been more clearly articulated.

[20]            This third factor is not helpful in this case.

(d)        Any other factor the court considers appropriate

[21]            While the relative financial positions may not be determinative, I am prepared to consider the financial circumstances of the plaintiff.  They are poor.  She invested in a laundry business which has now failed.  The lender holds a claim over her home.  As well, she is responsible for some or all of a $62,000 personal guarantee given in connection with the business.

[22]            The plaintiff has begun working at a small firm on an as-needed basis for $11 per hour.  She is unable to pay her bills.  She owes her law firm some $40,000 for disbursements.  These circumstances militate against an award of double costs.

[23]            I conclude that the plaintiff is entitled to costs up to November 2, 2006.  The defendants are entitled to costs, but not double costs, from November 2, 2006, to date.

[24]            There has been mixed success on this application for costs.  No costs are awarded in connection with this application.

ICBC Pain and Suffering Round-Up

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Headache Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Spine Injury Cases, Uncategorized.

With the Canucks losing game 6 and the series to the Blackhawks I figured its a fitting time to write about Pain and Suffering Claims in BC.
In the first case, Chan v. Kao, the Plaintiff suffered a left shoulder injury as a result of a 2006 motor vehicle collision.   Mr. Justice Verhoeven had credibility concerns with respect to some aspects of the Plaintiff’s testimony.  Despite this he concluded that “I have no difficulty in finding that Mr. Chan did in fact injure his left shoulder in the motor vehicle accident“.
In assessing the Plaintiff’s non-pecuniary loss (damages for pain and suffering) at $22,000 the court summarized his injuries and prognosis as follows:
[65]            I accept that Mr. Chan has continued to have shoulder problems and pain since the accident.  The extent to which this has affected his work is impossible to gauge, in view of the unreliability of his evidence.  It seems likely that Mr. Chan has worked at various times and places since the accident, but has chosen not to testify about that work…

72]            In summary, I accept that the plaintiff’s left shoulder was injured in the motor vehicle accident, and that he continues to suffer, to some extent, from shoulder difficulties initially caused by the accident.  The evidence as to the extent to which the ongoing shoulder problem causes the plaintiff ongoing difficulty and disability with respect to his ability to work is subject to considerable doubt, due to the unreliability of the plaintiff’s evidence in this respect, and the lack of corroborating evidence.

[73]            While Dr. Lui’s prognosis of permanent disability is overly pessimistic, both orthopaedic surgeons are of the view that there are ongoing problems in the shoulder which require treatment.  In my view, treatment options have not been adequately explored.

In addition to referencing several cases dealing with pain and suffering values in BC for shoulder injuries this claim is worth reviewing to see how Mr. Justice Verhoeven dealt with his concerns regarding the credibility of certain aspects of the Plaintiff’s evidence.

The second ICBC Pain and Suffering Claim released today (Mattu v. Fust) involved a 2004 collision.  The Plaintiff was 39 years old at the time.  His vehicle was rear-ended with enough force to push it into the vehicle ahead of him.

The Plaintiff suffered various soft tissue injuries leading to chronic pain and headaches.  The court found that the effects of these would likely be permanent.  Madam Justice Brown summarized the medical evidence of the Plaintiff’s treating family physician as follows:

 

[31]            Dr. Parhar has been Mr. Mattu’s family physician since April 2004. He provided three reports to the court. In his first report of November 1, 2004, he diagnosed Mr. Mattu with paracervical, parathoracic and paralumbar muscle strain, left shoulder strain and muscle tension headaches.  He had received ice, heat, rest, exercises, massage therapy, kinesiology, acupuncture, herbal medicine and medications: anti-inflamatories, analgesics and muscle relaxants.  With respect to prognosis and recommendations, Dr. Parhar was impressed by Mr. Mattu’s motivation to recover and try different treatments, but was concerned that he may be trying too many modalities.  He recommended limiting treatment to massage and physiotherapy and increasing active modalities such as swimming and exercises.  He anticipated further treatment and improvement.

[32]            In his report of May 26, 2006, Dr. Parhar found that Mr. Mattu continued to have decreased range of motion in the cervical spine, tenderness in the paracervical and paralumbar regions.  He found muscle spasm in the paracervical and paralumbar regions.  His diagnosis remained the same.  His prognosis for full recovery had worsened.  Mr. Mattu had tried a variety of treatments with minimal success.  Dr. Parhar’s recommendations were unchanged, but he thought that Mr. Mattu’s condition had plateaued.

[33]            In his final report of September 16, 2008, Dr. Parhar considered the MRIs of Mr. Mattu’s spine taken September 19, 2006, and July 28, 2008, and concluded that Mr. Mattu’s injuries included cervical and thoracic disc herniations.  He said: “… it is unclear if the cervical and thoracic disc herniations were caused by the motor vehicle accident … but certainly, this motor vehicle accident made these spinal lesions symptomatic.”  He commented on Mr. Mattu’s efforts to recover: “… pursued many more modalities of treatment than most patients would have. Despite all of these modalities his pain symptoms persist.”  He concluded that the prognosis for a full recovery was poor, that Mr. Mattu’s condition had plateaued and further improvement in his functioning or symptomatology was unlikely  

In awarding $60,000 for the Plaintiff’s non-pecuniary loss injuries and their effect on the Plaintiff’s life the court accepted the family physicians evidence and stated as follows  

[60]            I found the evidence of Dr. Parhar to be very helpful.  Dr. Parhar has seen Mr. Mattu regularly since shortly after the accident.  I accept his opinion that Mr. Mattu suffered paracervical, parathoracic and paralumbar muscle strain, left shoulder strain and muscle tension headaches from the accident; that his condition has plateaued; and that it is unlikely there will be further improvement.  I also accept the opinions of Drs. Parhar, Hershler and Hunt that the accident likely caused the disc herniations in Mr. Mattu’s back to become symptomatic.  Mr. Mattu will continue to need chiropractic treatment from time to time and would benefit from a personal trainer.

[61]            I have considered the cases which counsel have provided to me.  In my view, an appropriate award for non-pecuniary loss is $60,000.

Your Rights and the BC Election – BC Liberals vs. the NDP

Written by admin on . Posted in Uncategorized.

As an injury claims lawyer there are several political-legal issues that I like to keep my eye on. Issues such as legal aid funding, tort reform efforts (code for limiting the rights of victims injured through the careless actions of others) and access to justice are all of interest to me.
With a  Provincial Election just around the corner where do BC’s 2 main political parties stand on these important issues?
Thanks to the efforts of the Trial Lawyers Association of British Columbia (the “TLABC”), we now have some much needed insight.
The Trial Lawyers Association of BC posed the following 14 questions to the NDP, and the BC Liberal Party:
1.  If Elected, will you oppose the BCJRTF proposal for active case management?
2.  If Elected, will you oppose the BCJRTF proposal for curtailing discovery rights?
3.  If elected, will you oppose efforts to introduce no-fault automobile insurance in BC?
4.  If elected, will you support a change in legislation to allow damages for mental anguish and other intangible losses suffered by family members of people who are killed by the careless, reckless or illegal acts of others?
5.  If elected, will you oppose any effort to further restrict the ability of injured patients to recover damages in court for medical malpractice?
6.  If elected, will you support legislation that requires the court to consider an award of punitive damages where conduct of the defendant is found to be outrageous or unusually reckless?
7.  If elected, will you work to protect and enhance the tort system as a means of deterring unsafe conduct  and holding wrongdoers accountable for the injuries they cause?
8.  If elected, will you support a return to the previous law, which permitted accident victims to recover their gross earnings?
9.  If elected will you support a return to rights being debated in the legislature rather than being changed through regulations and therefor altered by ICBC and the provincial cabinet without open debate?
10.  If elected, will you support a return to payment of interest on non-economic damages?
11.  If elected,  will you support renewal of the legal aid system by providing legal aid to those who need it, and ensuring that those who represent them are adequately compensated for this work?
12.  If elected, will you support reinstating a legal aid system which funds family law legal services at least to pre 2000 levels, such that eligibility requirements are sufficient to meet the needs of the diverse communities of BC, and the funding is sufficient for counsel to attend to these cases in a manner that meets their practice standards while also permitting access to justice for those marginalized in society?
13.  If elected, will you support the revisions to the proposed family rules to address these concerns?
14.  If elected, will you support increasing the funding to provincial correction services to improve the quality of programs within those facilities?
Here are the Parties answers:
BC LIBERALS
1.  The BC Liberal government, in conjunction with the judiciary and senior members of the bar, convened the British Columbia Justice Reform Task Force to identify a wide range of ideas and initiatives to make the justice system more responsive, accessible and cost-effective.  Experience in other jurisdictions, including the United Kingdom and Ontario, demonstrate that case management conferences reduce delays, increase predictability, reduce overall costs and lower court administration costs. The Task Force has learned from the experience of jurisdictions and has incorporated those lessons into the proposed changes. 
2.  The British Columbia Justice Reform Task Force has reviewed the experience of jurisdictions that have limited discovery and concluded there is no evidence that it has created unfairness, and studies have concluded that excessive document production and oral discovery are responsible for much of the delay and expense in civil litigation. The proposed rules strike a balance between the right of discovery and efficiency. Litigants must disclose all documents referred to in their pleadings, all documents they intend to refer to at trial and all documents that could be used to prove or disprove a material fact in the case. It is open to parties to apply to extend this scope of discovery in any case where a wider scope would be warranted.   
3.  A BC Liberal government has no intention of moving to a system of no-fault insurance in British Columbia, or of introducing caps, deductibles or thresholds      
4.  British Columbia’s Family Compensation Act governs the compensation for wrongful death cases involving family members. The BC Liberal government initiated a review of the entire Act, which is examining issues such as compensation for non-economic losses including pain and suffering and bereavement. Victims groups and other advocacy groups have offered valuable input during the consultation phase.   
5.  This issue relates to detailed aspects of the current system of personal injury compensation in British Columbia, which is a mixture of common law and statute law. We think it is important to engage law reform agencies, the legal profession and other affected groups in a careful consideration of these issues. Through its input, the Trial Lawyers Association of British Columbia can help preserve and protect the basic principles of the tort system.     
6.  See above     
7.  The BC Liberals support our civil law system as both a system of compensation and deterrence. We also believe that the court system must be more accessible, accountable and affordable so that justice is available for all British Columbians. That is why the BC Liberal government invested $12 million over three years to reform the civil, family and criminal justice systems.   
8.  This issue relates to detailed aspects of the current system of personal injury compensation in British Columbia, which is a mixture of common law and statute law. We think it is important to engage law reform agencies, the legal profession and other affected groups in a careful consideration of these issues. Through its input, the Trial Lawyers Association of British Columbia can help preserve and protect the basic principles of the tort system.    
9.  Changes to the Insurance (Motor Vehicle) Act must be debated in the legislature. Regulatory changes must be approved by Cabinet. The BC Liberals have no plans to alter this long-standing division of responsibilities.    
10.  This issue relates to detailed aspects of the current system of personal injury compensation in British Columbia, which is a mixture of common law and statute law. We think it is important to engage law reform agencies, the legal profession and other affected groups in a careful consideration of these issues. Through its input, the Trial Lawyers Association of British Columbia can help preserve and protect the basic principles of the tort system.    
It is our view that injured plaintiffs should not have their compensation reduced by the effect of delay in payment. Whether the appropriate tool to achieve this objective is by payment of interest, by including the “time value of money” in the calculation of awards for non-pecuniary damages, or by some other means is a question that requires further consideration.      
11.  The BC Liberal government funds one of the most generous legal aid programs in Canada. Legal aid now provides full coverage for family matters involving domestic violence or child protection hearings and expanded legal information and education services. Legal aid has traditionally provided legal representation, paying private lawyers to fight each other in court. That is not what people need to effectively resolve disputes. Access to justice for disadvantaged people requires a continuum of services, including provision of information, support and advice, getting help through alternative dispute resolution and, in some cases, full legal representation.  
The BC Liberal government has implemented a more regionally-based structure with less administration; built up support programs like a 24-hour province-wide legal aid call centre; and provided more economical alternatives to court, like mediation, to focus legal aid dollars where they are needed most – delivering essential services. The new legal aid model reduces administrative costs and puts more money into direct services.    
12.  The BC Liberal government recently increased legal aid funding by $4.6 million. The money will provide family legal services for low-income families in crisis. The BC Liberals will continue to design efficient and responsive programs that make the justice system simpler and more affordable.   
In 2008/09 the BC Liberal government spent $29.9 million on access to justice services beyond the funding we provide to the legal aid program and includes services in addition to mediation and dispute resolution. The BC Liberal government took steps to ensure that legal representation for family disputes is available to eligible clients in emergency situations, including clients in financial need where the Province is seeking custody of a child.    
13.  The new vision of family justice embodied in the proposed rule changes builds on extensive efforts over the last several years to move the family justice system away from an adversarial process. The goal is a process focused on values of family autonomy, co-operation and the best interests of the child.   
The BC Liberal government introduced a notice to mediate process in November 2007 to help facilitate out of court resolution. An expanded Justice Access Centre pilot project was opened in Nanaimo, which offers services and supports with family justice issues. The BC Liberals want to make family disputes easier to resolve and more affordable through new rules of procedure.   
14.  The BC Liberals support programs within the provincial corrections systems that are targeted at reducing recidivism. The BC Liberal government supports programs designed to help offenders confront and deal with issues underlying their behaviors such as substance abuse, violence prevention and respectful relationships. In partnership with Justice Canada, the BC Liberal government supported the enhancement of Aboriginal programming in correctional centres and communities. Programs assisting inmates to upgrade their education and develop life skills are also offered.
The NDP:  
1 – Yes, we will oppose the BCJRTF proposal for active case management.   
2 – Yes, we will oppose the BCJRTF proposal for curtailing discovery rights.   
3 – Yes, we will oppose efforts to introduce no-fault automobile insurance in BC.   
4 – We believe that this issue needs consultation and further study.   
5 – Yes, we will oppose any effort to further restrict the ability of injured patients to recover damages in court for medical malpractice.   
6 – Yes, we will support legislation that requires the court to consider an award of punitive damages where conduct of the defendant is found to be outrageous or unusually reckless.   
7 – Yes, we will work to protect and enhance the tort system as a means of deterring unsafe conduct and holding wrongdoers accountable for the injuries they cause.   
8 – We believe that this issue needs consultation and further study.   
9 – Yes, we will support a return to rights being debated in the legislature rather than being changed through regulations and therefore altered by ICBC and the provincial cabinet without debate.   
10 – We believe that this issue needs consultation and further study.   
11 and 12:   
We are very concerned about the current state of legal aid in BC, particularly with respect to family law. We will work towards reinstating resources for legal aid services, starting with additional funding of $10 million annually for 2010/11 and 2011/12. As resources permit we will do more to fix B.C.’s legal aid system to ensure access for those who need it.   
13 – Yes, we will support revisions to the proposed family rules to address these concerns.  
14 – Yes, we will support increasing the funding to provincial correction services to improve the quality of programs within those facilities. 

Medical Records and ICBC Injury Claims

Written by admin on . Posted in Civil Procedure, Uncategorized.

ICBC Injury Claims tend to be record heavy.  It is important to understand the types of records that are typically used in ICBC claims and how these records can be used.
One of the most frequent records reviewed and used by lawyers involved in these cases are clinical records of treating physicians.  These records can be a rich source of information documenting a person’s complaints of injury, course of improvement, medical advice prescribed and other useful information.
When ICBC claims proceed to trial these records are often put to some use by the lawyers involved.  The extent to which each lawyer can use the records varies.  For example, a Plaintiff’s lawyer usually can’t use the records to corroborate the Plaintiff’s evidence at trial as doing so can offend the rule of bolstering a clients credibility by leading evidence of ‘prior consistent statments’.
ICBC Defence lawyers, however, often use prior recorded statements when cross-examining a Plaintiff with respect to injuries sustained in an ICBC claim.  This is one of the most frequent uses made of clinical records in ICBC claims.
It is important for lawyers and clients alike to understand the use that can be made of clinical records at both examinations for discovery and trial in their ICBC Injury Claims.
Reasons for judgment were released today by the BC Court of Appeal shedding light on this topic.   In today’s case the Plaintiff was awarded damages as a result of a 2005 motor vehicle collision.  The defendant appealed claiming that the damages awarded were excessive in the circumstances and that the trial judge made several errors.  In dismissing the appeal the BC Court of Appeal noted that while some errors were made none of these prejudiced the Defendant in the trial.  In doing so the court made some comments on the use to which clinical records can be made at trial.  I reproduce the highlights of this discussion below:

Medical Records Issues

[7]                During cross-examination of the plaintiff’s family physician, Dr. Dwyer, counsel for the defendant asked to have his clinical notes admitted as an exhibit.  Counsel stated that the defendant intended to rely on the absence from the notes of any notation of a complaint by the plaintiff related to limitations on his work capacity, particularly with respect to script writing.  Dr. Dwyer testified that he would have noted such complaints if they had been made to him.  Counsel argued that the clinical notes were admissible as business records under s. 42 of the Evidence Act, R.S.B.C. 1996, c. 124.  The trial judge questioned the admissibility of the portions of the notes that recorded the plaintiff’s complaints of symptoms.  He distinguished between the doctor’s notes of the results of his physical examination of the plaintiff and notes of the plaintiff’s subjective complaints to the doctor.  The trial judge considered the plaintiff’s statements to be hearsay.  He questioned the evidentiary value of the records apart from the doctor’s testimony, pointing out that the doctor was entitled to refer to his notes to refresh his memory and “there’s nothing preventing you from exploring all of these questions with this witness.”

[8]                The trial judge summarized his conclusions as to the attempted use of the notes to discredit the plaintiff’s account of symptoms in these terms (at paras. 35 to 37):

I accept Mr. Bancroft-Wilson’s evidence in regard to the onset of the headaches, and their intensity, frequency, and endurance.  Efforts to discredit him with alleged inconsistencies in doctors’ clinical notes were, in my view, not successful.  It must be borne in mind that the primary objective of physicians’ clinical notes is to refresh their own memories as to what transpired during a clinical examination, for the purposes of medical treatment.  These notes are not made for investigative and litigation purposes.  If this were the purpose then it would, in my opinion, be important for physicians to ensure that they have accurately recorded full and detailed accounts of what a patient said during a clinical visit and then have the patient verify the accuracy of the notes.

Physicians are not investigators.  They are neither trained to accurately record what a person says nor to draw out a fulsome account for litigation purposes.  The use of clinicians’ notes, made hastily during a clinical visit and never reviewed for accuracy by the patient, may operate unfairly to the patient as plaintiff or witness.  It should also be borne in mind that when a patient sees his or her physician with a complaint of significant pain, the circumstances are far less from ideal for obtaining full and accurate information.

I do not suggest by any of the foregoing that it is impermissible to use clinical notes to challenge a plaintiff’s credibility, but the frailties inherent in such recordings should be recognized. In the instant case, I find that the clinician’s notes do not have sufficient accuracy and reliability to undermine the plaintiff’s evidence where the notes allegedly differ from the plaintiff’s testimony at trial.

[Emphasis added]

[9]                The defendant contends that the trial judge erred in law by refusing to admit the clinical notes as admissions against interest.  This Court in Samuel v. Chrysler Credit Canada Ltd., 2007 BCCA 431, 70 B.C.L.R. (4th) 247, has recently confirmed that statements made by a plaintiff to doctors and recorded in clinical notes are hearsay and not admissible by the plaintiff to prove the truth of the symptoms complained of to the doctors.  The Court in Samuel was not concerned with the exception to the hearsay rule for admissions against interest.  Statements made by a plaintiff to doctors may be admissible under that exception when tendered for that purpose by the defendant or other party opposed in interest to the plaintiff; see Cunningham v. Slubowski, 2003 BCSC 1854 at para. 14.

[10]            I do not read the trial judge’s reasons as categorically rejecting the admissibility of clinical notes as a general proposition.  Rather he addressed the evidentiary weight of the notes.  I think that he went too far in the sentence underlined above when he stated that clinical notes are not made for investigative and litigation purposes.  That overlooks the fact that all of the medical doctors who testified, apart from Dr. Dwyer, were retained to provide independent medical opinions for the purposes of litigation.  Complaints of symptoms by a plaintiff to doctors must be supported by confirmation of those symptoms by the plaintiff’s testimony in court to provide an evidentiary foundation for the medical opinions; see, for example, Lenoard v. B.C. Hydro & Power Authority (1964), 50 W.W.R. 546 (B.C.S.C.).  Nonetheless, the accuracy of the doctors’ record of complaints is important to their opinions, and to that extent accuracy has obvious litigation implications.

[11]            While clinical records may be admissible as a record of admissions against interest in appropriate circumstances, in the instant case the defendant seeks to rely on the clinical notes to support the inference that the plaintiff did not complain to the doctor of the symptoms he alleges because the notes do not contain any reference to those symptoms.  In effect, the defendant is contending for an admission by omission.  In my view, that overstretches the limits of the admissions exception in the circumstances here.  The notes standing alone are of little if any weight for the purpose intended by the defendant and I think that the trial judge adopted the proper course in limiting their use to refreshing the memory of the doctors during their testimony. 

[12]            Viewing the trial judge’s reasons as a whole on this aspect of the case, I am satisfied that he did not reject entirely the admissibility of the clinical notes and he treated their significance as a matter of weight in the context of the doctors’ testimony.  For example, the trial judge observed that Dr. Dwyer’s notes supported the plaintiff’s complaint of back pain within four days of the accident.  The judge advised counsel for the defendant that she could renew her application to admit the notes later and counsel did not take up that opportunity.  I think that any evidentiary value attached to the notes was merged in the testimony of the doctors and there was no prejudice to the defendant arising from their formal inadmissibility as admissions against interest.

 

One More Rule 37B Case – Formal Settlement Offers and Expiry

Written by admin on . Posted in Civil Procedure.

I just came across reasons for judgement pronounced on February 10, 2009 by the BC Supreme Court, Chilliwack Registry, but just recently transcribed dealing further with Rule 37B (click here to read my previous posts on this rule).
In this case (Smith v. Tedford and ICBC) the Plaintiff made an offer to settle her ICBC Case 10 days before trial.  The offer did not contain an expiry date in it.  The offer was not accepted by ICBC before trial but on the 6th day of the scheduled 15 day jury trial ICBC purported to accept the offer.   The Plaintiff’s lawyer, wishing to proceed with the trial,  argued that the offer could not be accepted after the commencement of trial.  Mr. Justice Grist held otherwise and found that the acceptance was viable.
The principle to take from this judgment is that if you want to have a certain expiry date in your offer to settle under Rule 37B this end date should specifically be incorporated into the written terms of the offer.
The judgement is very short and to the point and for the convenience of my readers I reproduce it below:

[1]                THE COURT:  The issue at this juncture, day 6 of a 15-day civil jury trial, is the effect of the defendants’ purported acceptance of the plaintiff’s offer to settle made January 23rd, 2009, ten days prior to commencement of the trial.

[2]                The defendants’ position is that under Rule 37B, there is no limitation requiring acceptance of an offer prior to trial as used to exist under Rule 37(13).  Further, there was no time for acceptance stipulated in the offer itself and accordingly, the offer remained open for acceptance.

[3]                The plaintiff disputes that a settlement follows the acceptance and argues that the new rule impliedly incorporates the earlier provision for expiry on the commencement of trial.

[4]                I do not find that to be the case.  There is no conflict inherent in Rule 37B(2) requiring the interpretation the plaintiff suggests.

[5]                The Plaintiff also argues that on common law principles, a reasonable time for acceptance has expired.  I am referred to the decision of Mr. Justice Curtis in Morrow v. Outerbridge(phonetic), unreported, which apparently follows this logic in rejection of a purported acceptance of an offer to settle communicated 18 days into a 20-day trial.  The defendant, in reply, refers to authority under the old rules which suggests that common law principles may not apply to the offer and acceptance process regulated by the rules.  However this may be, I do not think the common law principle argued here indicates an expiry by effluxion of time, in any event.  The offer was ten days prior to trial, a trial which has not yet proceeded to conclusion of the plaintiff’s case.  This, on the face of it, in my view, does not present such an unreasonable delay as to deem an offer, unconditional on its face, lapsed through the effluxion of time.

[6]                The plaintiff argues that the purpose of the offer process is to settle litigation and that this objective is not advanced by allowing a “wait and see” stance by the opposite party.  There may be some force to this, but the remedy is in the hands of the party wanting to avoid this outcome through the structure of the form of the offer, as is now available under Rule 37B.  Further, avoidance of the length of litigation of itself may also have a similar form of a social benefit and the fact that costs may be doubled for the interrupted trial process, continues to be a benefit to the party making the offer.

[7]                The new rule has, I think, two main characteristics not evident under the earlier enactment.  First, the parties are free to structure offers of settlement as they consider appropriate to the case.  And secondly, a generally greater degree of judicial discretion can be employed in the order of costs to be crafted in the circumstances presented by the offer and acceptance process.

[8]                The first of these characteristics frees the parties from the strictures that were evident in the prior rules.  If I were to find implied rules built into the new enactment, the obvious attempt to try and move away from the problems those strictures presented, would be to a degree, defeated.

[9]                Accordingly, I find the acceptance to be viable and to have the effect of settling the issues outstanding in this litigation.

$115,000 Pain and Suffering Awarded for Mild Traumatic Brain Injury

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

In reasons for judgement released yesterday (Williamson v. Suna) by the BC Supreme Court, Victoria Registry, damages of just over $266,000 were awarded for injuries and losses as a result of a 2004 motor vehicle collision.
The Plaintiff was a 38 year old member of the Canadian Armed Forces at the time of the car crash.  The crash was a significant head on collision.  The issue of fault was admitted focusing the trial solely on damages.
The Plaintiff suffered various injuries and symptoms as a result of this crash including a mild traumatic brain injury, headaches, poor sleep, irritability and difficulties with memory.  While the medical evidence did not rule out further possible recovery the testifying physcians stated that the plaintiff would probably suffer from headaches, neck pain and consequences of the mild traumatic brain injury for many years to come.
In awarding $115,000 for the plaintiffs non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) Mr. Justice Goepel summarized the consequences of the injuries on the Plaintiff as follows:

[41]            Prior to the accident, Mr. Williamson was in good health.  He was physically active, and enjoyed activities such as fly fishing, scuba diving, sky diving, and competitive target shooting.  He was a former member of the Canadian national shooting team. 

[42]            After the accident, Mr. Williamson stopped skydiving and scuba diving.  While he still participates in target shooting, the enjoyment that he derives from that activity has decreased.  He explained that the noise from the rifle aggravates his headache, and the kick from the rifle aggravates his neck pain. 

[43]            Before the accident, Mr. Williamson was an active photographer.  He had taken a number of photography courses.  Since the accident, the enjoyment he derives from photography has decreased.  He has difficulty maintaining the static neck positions required to take quality photographs. 

[44]            Mr. Williamson testified that as a result of the accident and his headaches, he now seldom goes out in the evenings.  His irritability has obviously impacted on his family life.  Because of his headaches, he is unable to enjoy his young child as much as he should.

[45]            Mr. Williamson realizes that his injuries, particularly his difficulties with memory and concentration may eventually curtail his military career.  That possibility has caused him considerable anguish and diminished his enjoyment of life.

In addition to non-pecuniary damages, $150,000 was awarded for the Plaintiff’s diminished earning capacity.  Although he missed little time from work in the Canadian Armed Forces and in fact was promoted in the years after the car crash the court found that there was a possibility that the Plaintiff would not be able to continue in his current position or perhaps in the military  altogether as a result of his injuries.  Paragraphs 52-62 are worth reviewing for a discussion demonstrating how damages for future wage loss / diminished earning capacity can be made in an ICBC Injury Claim even where there is no wage loss from the time of the crash to the time of trial.

Examinations for Discovery and Proper Objections in ICBC Injury Claims

Written by admin on . Posted in Civil Procedure, Uncategorized. 60 Comments on Examinations for Discovery and Proper Objections in ICBC Injury Claims

Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, discussing examinations for discovery in ICBC Injury Claims and the proper way to frame objections.
In yesterday’s case (Day v. Hume) the Plaintiff allegedly suffered a brain injury as a result of a serious motor vehicle accident.  In the course of being examined for discovery the Plaintiff’s lawyer ‘intervened on several occasions and, in the end, terminated the examination after 50 minutes over (the objection of the ICBC defence lawyer).’
As a result ICBC’s lawyer brought a motion seeking to dismiss the Plaintiff’s lawsuit on the basis that he unreasonably refused to answer questions put to him in discovery.
Madam Justice Smith of the BC Supreme Court declined to grant ICBC this relief and in doing so highlighted some points about the proper course of objecting to questions in examinations for discovery.  I reproduce the highlights of the courts discussion below:

[20]            The principles emerging from the authorities are clear.  An examination for discovery is in the nature of cross-examination and counsel for the party being examined should not interfere except where it is clearly necessary to resolve ambiguity in a question or to prevent injustice.  Intervention should not be in a form that suggests to a witness what a desirable answer might be.  As stated by Garson J. in Forliti v. Woolley, the proper conduct of counsel is to state the objection to the form of the question and the reasons for the objection, but it is not appropriate to make comments, suggestions, or criticism. 

[21]            There was no real disagreement about the legal principles, except that Mr. Maryn submitted that it must be recognized that the practice has changed since Cominco was decided in that it is now necessary to bring on an application in Chambers with respect to disputes about relevance or other matters at examinations for discovery.  Mr. Maryn submitted that it is quite appropriate for counsel to have a discussion about what might make a line of inquiry relevant and he suggested that if counsel for the defendant had been more forthcoming in this case, some of the problems leading to this application might have been avoided. 

[22]            Mr. Maryn also submitted that, in this case, where his client has suffered a brain injury and consequential memory loss, it was appropriate to remind him during the course of the examination for discovery not to make guesses.  Mr. Duplessis’s submission on that point was that it is not appropriate to remind a witness of such instructions and that any of Mr. Maryn’slegitimate concerns could be resolved through appropriate re-examination at the end of the examination for discovery. 

[23]            Looking at the transcript in this case, while possibly Mr. Maryn would have been justified in reminding his witness once not to guess or speculate and his initial comment to that effect was probably appropriate, his statement after question 39… went well beyond a reminder….  

[24]            There was also disagreement as to whether or not counsel for the party under examination for discovery can make statements for the record at the examination for discovery.  Mr. Duplessis took the position that it is not open to counsel to state things for the record.  I disagree.  Although, as I have stated, counsel for the party under examination should not make comments unless they are clearly necessary, it may be appropriate for counsel making an objection to state briefly what the objection is based upon.  First, that may lead to a resolution of the matter through discussion between counsel and avoid this kind of application.  Second, it facilitates a determination of the issue by the court if there is an application to compel an answer.  However, objections by counsel should be concise and to the point….


Rule 37B and Withdrawn Formal Settlement Offers

Written by admin on . Posted in Civil Procedure.

I’ve written many times about the relatively new Rule 37B and its consequences in BC personal injury claims (click here to read my previous posts), yesterday reasons for judgement were released by the BC Supreme Court (New Westminster Registry) giving more clarity to this rule.
In yesterday’s case, ICBC v. Patko, ICBC sued the defendant alleging fraud.  In the course of the proceedings the Defendant made 2 offers to settle, one of which was withdrawn prior to trial and replaced with a subsequent formal offer.  The Jury dismissed ICBC’s claim against the Plaintiff.  In deciding what costs consequences should flow from these facts one of the issues decided by Mr. Justice Grauer of the BC Supreme Court was whether costs consequences can flow from a formal Rule 37B settlement offer when that offer is withdrawn prior to trial.  In finding that Rule 37B does permit costs consequences to be triggered in these circumstances the court stated as follows:

[31]            Jonathen Patko made a formal offer to settle to ICBC in the amount of $22,500 on June 5, 2007.  On June 4, 2008, after Mr. Patko had pleaded guilty to the quasi-criminal charge against him and had been fined and ordered to pay restitution, he withdrew that offer.  On October 23, 2008, when it became clear that a summary trial was impracticable and this matter would therefore proceed to a full trial, Mr. Patko delivered a further offer to settle in the amount of $11,000.

[32]            Because the action against Mr. Patko was dismissed, the issue addressed by my brother Goepel in A.E. v. D.W.J., 2009 BCSC 505, does not arise, except to confirm that my discretion is limited by the provisions of Rule 37B(5).

[33]            The plaintiff argues that the first offer to settle, dated June 5, 2007, is of no consequence and cannot be considered, because it was revoked a year later.  As to both offers, the plaintiff argues that neither was “one that ought reasonably to have been accepted” in accordance with Rule 37B(6)(a).  In this regard, the plaintiff pointed out that it had paid out over $55,000 as a consequence of the accident and its aftermath, and that Mr. Patko admitted his lie.  Accordingly, the plaintiff argued, both offers were for far less than what the plaintiff had paid out and might have reasonably expected to recover.  ICBC would, of course, have had to pay out that $55,000 even if Mr. Patko had not lied.  This reality did not seem to factor in its assessment of the claim and Mr. Patko’s offers.

[34]            The first question is whether I am limited to considering the second offer to settle, given that the first was revoked a year after it was made.

[35]            In my view, there is nothing in Rule 37B that would place that limitation on my discretion.  Notwithstanding the evolution of the treatment of offers to settle in the Rules, it is clear that one of the principal purposes of Rule 37B remains the same as that noted of the former Rule 37 by Cumming J.A. in Skidmore v. Blackmore (1995), 2 B.C.L.R. (3d) 201, 122 D.L.R. (4th) 330 (C.A.):

… to encourage conduct that reduces the duration and expense of litigation, and to discourage conduct that has the opposite effect.

[36]            Both offers constitute an “offer to settle” within the meaning of Rule 37B(1)(a).  Although the first offer was indeed revoked, it was outstanding for a full year.  The real question is whether, notwithstanding its eventual withdrawal, it was an offer that ought reasonably to have been accepted while it remained open.  To treat it this way is, in my view, consistent with the object described by Cumming J.A. in Skidmore.

[37]            Turning to the issue of reasonableness, I do not think that this question turns on the losing party’s view, at the time that the offer was made, of the result it might expect to achieve.  Rather, reasonableness must be viewed from the perspective of the state of the litigation at the time of the offer, and from the perspective of the result.  In this case, the issues were clear at the time of the first offer, let alone the second.  This was not a case where, for instance, further discovery and investigation was required before the plaintiff could reasonably evaluate its position in light of the offer.

[38]            As to the reasonableness of the plaintiff’s expectation, I note that it was ICBC who had chosen trial by jury, thereby accepting the degree of uncertainty that arises from that mode of trial.

[39]            Moreover, it was the plaintiff that chose to bind itself by a “zero tolerance” policy, which prevented the possibility of a compromise settlement in a case that was not a typical automobile insurance fraud claim. It was certainly open to ICBC to adopt such a policy, no doubt for its own good reasons.  But in this proceeding, the policy worked against ICBC, allowing for no flexibility notwithstanding the unique facts of the case.

[40]            In all of these circumstances, I conclude that the first offer was one which ought reasonably to have been accepted.  In choosing not to accept it because of its own assessment of the strength of its position and its “zero-tolerance” policy, ICBC took its chances, and it lost.

[41]            Taking that into account, as well as the other factors set out in Rule 37B(6), and the course of the litigation in general, I conclude that Jonathen Patko should be awarded double costs of all steps taken in this proceeding after June 5, 2007, when the first offer to settle was delivered.