Supreme Court of BC and Trial Costs

Today I’m blogging from sunny Kamloops from my colleague Peter Jensen’s office.  Clients are coming soon so I have to keep this short.
The Supreme Court of BC has an unlimited monetary jurisdiction whereas BC small claims court currently has a jurisdiction of $25,000 or less.  When suing for damages as a result of a BC car accident you have to decide which court you will sue in.
When involved in an ICBC tort claim in the BC Supreme Court the winner can be awarded Costs, whereas in Small Claims Court the winner can only be awarded disbursements as opposed to Tariff Costs.
When you bring an ICBC claim in Supreme Court and are awarded less than $25,000 can you still be awarded your court tariff Costs?  The answer is sometimes.
Rule 57(10) of the BC Supreme Court rules states that
A plaintiff who recovers a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds that there was sufficient reason for bringing the proceeding in the Supreme Court and so orders.
The question then is, did you have a good reason to sue in Supreme Court when you started the lawsuit?
Reasons for judgement were released today awarding a Plaintiff Costs even though the ultimate award was below $25,000.  At Paragraphs 7-10, the trial judge (Madam Justice Humphries) explained why in this case the Plaintiff had ‘sufficient reason’ to bring the suit is Supreme Court holding that:

[7] The relevant time at which the value of (the Plaintiff’s) claim should be assessed, then, is when the action was commenced.  At that time, (the Plaintiff) still had some residual effects from the accident and was missing the occasional day of work.  I found this evidence credible, and noted that she still had occasional flare-ups, with decreasing frequency.  Her voluntary retirement worked to the benefit of the defendant in that any potential ongoing wage loss from these flare-ups would not be claimed against him.  (the Plaintiff) was careful to ensure that only those days attributable to the effects of the accident were claimed for.  She asserted a claim for loss of earning capacity, but decided not to pursue it by the time of trial.  Although such an award would not have been large, if any at all were established, it is difficult to say, in hindsight, that the entire claim would obviously have come under the Small Claims limit of $25,000 at the time the action was commenced.  Plaintiff’s counsel subsequently came to assess the claim with the advantage of all the information available by the time of trial and to put forward a realistic and sustainable range of damages in his final submissions, but that is not, according to Reimann, relevant to the present issue.

[8] In Faedo v. Dowell and Wachter, M064051 (October 19, 2007) Vancouver, Curtis J. held that in a situation where the defendant put the plaintiff to the proof of having suffered any injury at all, thus making her credibility a crucial issue at trial, it was reasonable for the plaintiff to require the assistance of counsel.  She was therefore justified in commencing the action in Supreme Court where she could hope to recover some of the costs it was necessary for her to expend in retaining counsel to recover the compensation to which she was found to be entitled.  This reasoning has application here as well.

[9] In the result, the plaintiff has advanced sufficient reason for having commenced her action in this court and is entitled to her costs pursuant to Rule 66.

This is a good judgement for Plaintiffs bringing ICBC claims, particularly those involved in Low Velocity Impacts (LVI’s) where ICBC denies that injury occurred.  It recognizes the fact that ICBC often tells people that they aren’t injured at all and this brings their credibility into play.   Here the court realized that in such circumstances it is appropriate to hire a personal injury lawyer and try to offset some of these costs by suing in Supreme Court even though the Small Claims Court has sufficient monetary jursidiction to deal with the tort claim.

Why Can ICBC Claims Take a Long Time to Settle?

1. The medical system is slow
2. The Court system is slow
Personal injury cases depend on both the medical system and the court system. When you add these 2 systems together it is easy to see why it can take a very long time to fairly settle an ICBC injury claim.
In cases of minor injuries that quickly heal there is no reason for the settlement of the ICBC tort claim to take a long time. Once the injuries fully heal your losses can be valued, out of pocket expenses can be added up and a fair range for pain and suffering can be negotiated.
In cases of serious injury it is not that simple. Serious injuries can take a long time to heal. Sometimes they don’t fully heal, instead they plateau at what’s known as a point of ‘maximum medical improvement’. In cases of serious injury it is imprortant to learn what their long term consequences will be prior to settling with ICBC. The following are some of the questions that should be answered prior to settling:
1. Will the injuries fully heal?
2. If so, when will they fully heal?
3. If not, when will they reach the point of maximum medical improvement?
4. Will the injuries get worse with time? (such as the on-set of post-traumatic arthritis)
5. What effect will the injuries have in the long term on one’s ability to work?
6. What future care needs will be necessary to compensate for the long term injuries?
It is very difficult to fairly value an ICBC injury claim involving serious injuries if the answers to the above questions are not known. These questions often can’t be answered quickly. The medical system is slow. It can take a long time to get properly investigated (wait lists for specialists, who then order tests, wait lists for tests, wait lists to see the specialist again….)
Once the full long term impact of injuries is known they can be valued. Settling prematurely can be financially devastating if the long term reality of injuries is worse than anticipated at the time of settlement.  As a personal injury lawyer I often find myself speaking with people who settled their cases prematurely for amounts that significantly short change their injuries. It is only in rare circumstances that such settlements can be set aside.
Keep limitation periods in mind and know that time is on your side when it comes to settling an ICBC injury claim. The desire for quick settlement should never over-ride the desire for a fair settlement.

How Saving a Few Hundred Bucks Could Cost You a Few Hundred Thousand

When you purchase a contract of insurance with ICBC they want to know who the principal operator is going to be. The insurance premiums may vary based on the person’s driving record. It is unfortunately all too common of a problem for people to misrepresent who the principal operator of their vehicle is when insuring the vehicle with ICBC. Doing so is a breach of section 75 of the Insurance (Vehicle) Act which reads as follows:

I have unfortunately seen too many examples of people getting into trouble for misrepresenting the principal operator to ICBC. Parents say they are the principal operator when really their kids are or friends claiming they are the principal operator when really their buddy with a few too many speeding tickets is. All this to save a few hundred bucks. This ‘misrepresentation’ can lead to a loss of coverage. This loss of coverage could result in hundreds of thousands of dollars of debt not only to the driver but to the registered owner who claimed they were the principal operator.
The following are a few examples of the potential consequences of breaching a policy of insurance by lying about who the principal operator is:
a. If your car gets stolen ICBC would not have to pay you for this
b. If you are injured in a car crash that is not your fault ICBC will not have to pay you your ‘no-fault’ benefits
c. If you are at fault for a crash and injure someone else ICBC will not indemnify you for the losses you caused. Imagine that you are at fault for a crash that results in serious injury to another motorist. Imagine that the other motorists ICBC injury claim is worth $300,000. You could be on the hook personally for the value of that claim!
The consequences of breaching your ICBC insurance policy far outweigh the benefits of saving a friend or family member a few hundred bucks on their insurance premiums. Being in breach of insurance can have life-long financial consequences on motorists and I have seen these first hand. If you know of anyone who is trying to save a few bucks by misrepresenting who the principal operator of their vehicle is, do them a huge favour. Tell them the consequences before it is too late.

BC Court of Appeal: Previous Settlements to be Deducted from Indivisible Injury Awards

Reasons for judgement were released today from the BC Court of Appeal which are of great significance for anyone advancing an ICBC injury claim which involves more than one event which contributed to the injury.
In this case the Plaintiff was injured in 2 separate car accidents. She was not at fault for either. The injuries in both were found to be ‘indivisible’ meaning that the injuries were ’caused or materially contributed to’ by both events.
The Plaintiff claimed damages for both crashes. She settled one claim for $315,000. She succeeded in her lawsuit against the other driver and had her injuries valued at about $400,000. The trial judge then went on to order that the settlement proceeds from the second accident ($315,000) must be subtracted from the $400,000 awarded at trial. This was so because the injury was ‘indivisible’.
Today the BC Court of Appeal upheld this approach. In particular the court made (or confirmed) several important findings:
If two torts were necessary causes of the injuries, liability for the loss resulting from those injuries may be apportioned based on fault, but each tortfeasor is responsible for the entire damage to which their tort materially contributed beyond the de minimus range ( I would imagine this does not hold true, however, in cases of contributory negligence)
Although the concern in the case at bar is whether to deduct settlement proceeds from global damage awards rather than whether to make an exception to settlement privilege, the principle is the same: the concern to prevent double recovery outweighs the public interest in encouraging settlements.
A “divisible injury” is one that has ‘no causal connection’ to a certain tort
An ‘indivisble injury’ is one that was ’caused or materially contributed to by a tort’
“concurrent torts” occur when their negligence combine to cause one injury and its consequential loss at the same time
“consecutive torts” occur when injury occurs from 2 torts which occurred at different times.
There is no valid policy reason to treat concurrent and consecutive torts differently when both are necessary causes of an indivisible injury and the losses consequential to it.
When dealing with ‘consecutive torts’ causing an ‘ indivisible injury’ the two causes of action are not separate: they are linked by the indivisible injury. That link brings into play not only joint and several liability but also the rule against double recovery.
The bottom line is that if you sue for an ‘indivisible injury’ and have already been partially or wholly compensated by one ‘tortfeasor’ for that injury, a subsequent tortfeasor can subtract the compensation amount from what he/she has to pay.

More on ICBC and "Independent Medical Examinations"

When you sue another motorist in BC Supreme Court for car accident related injuries, they are entitled to ‘level the playing field’ by having you assessed by a so-called ‘independent medical examiner’.
This right is given to Defendants by Rule 30 of the BC Supreme Court Rules. Rule 30 reads as follows:
Rule 30 — Physical Examination and Inspection

Order for medical examination

(1) Where the physical or mental condition of a person is in issue in a proceeding, the court may order that the person submit to examination by a medical practitioner or other qualified person, and if the court makes an order, it may make

(a) an order respecting any expenses connected with the examination, and

(b) an order that the result of the examination be put in writing and that copies be made available to interested parties.

Subsequent examinations

(2) The court may order a further examination under this rule.

Questions by examiner

(3) A person who is making an examination under this rule may ask any relevant question concerning the medical condition or history of the person being examined.

Order for inspection and preservation of property

(4) Where the court considers it necessary or expedient for the purpose of obtaining full information or evidence, it may order the production, inspection and preservation of any property and authorize samples to be taken or observations to be made or experiments to be conducted on or with the property.

Entry upon land or buildings

(5) For the purpose of enabling an order under this rule to be carried out, the court may authorize a person to enter upon any land or building.

Application to persons outside British Columbia

(6) Rule 27 (26) applies to examinations and inspections ordered under this rule.

On behalf of Defendants, ICBC has a handful of doctors that they use regularly to conduct these ‘rule 30’ medical exams.
What if ICBC has already sent you to a doctor? Can they send you to a second? The answer is it depends on the circumstances. As you can see above, Rule 30(2) permits a court to order a second examination. Our courts have held that, depending on the circumstances, ICBC can send a Plaintiff to a second examination with a doctor with different qualifications than the first. There are numerous cases interpreting this rule and the specific cases either allowing, or disallowing, multiple medical examinations are too numerous to count. Reasons for judgement were released today permitting a Defendant to have Plaintiff injured in a 2004 BC Car accident assessed by a neurologist when that Plaintiff had already been assessed by an orthopaedic surgeon on behalf of the Defendants.
Some of the factors courts consider when deciding whether they should order a ‘further’ examination under Rule 30(2) were laid out in the recent BC Supreme Court case of Walch v. Zamco. In Walch, the court summarized the factors that ought to be considered as follows:

      • *
        The court’s discretion must be exercised judicially on the basis of the evidence;
      • *
        A second examination may be appropriate where there is some question which could not have been dealt with on the first examination;
      • *
        A second examination will not be allowed simply because the magnitude of the loss is greater than that previously known;
      • *
        A passage of time alone is not a sufficient reason to order a second examination;
      • *
        Where a diagnosis is difficult and existing assessments are aged, the court may consider a second examination;
      • *
        Differences of opinions between medical professions is not sufficient reason to order a second examination where the first examiner could have discovered the issue on the first examination.

The overriding question is whether a second medical examination is required to ensure reasonable equality between the parties in their preparation for trial: Wildemann v. Webster.

Reasonable equality does not mean that the defendant must be able to match expert for expert and report for report: McKay v. Passmore.

In order to obtain an order for a subsequent medical examination, the defendants must satisfy the courts that there is some question or matter of which could have been dealt with at the first examination: Jackson, supra.

When considering whether to grant a subsequent medical examination the court should take into account the timing of the application in light of the requirements of Rule 40A and practical issues relating to trial preparation: McKay, supra. The authorities do not require that the application be supported by medical evidence indicating that a subsequent medical examination is required: McKay, supra.

When deciding whether to consent to a second ICBC medical examination it is good to consider the above factors. Last, but not least, it is important to know that such an examination is ‘discretionary’ and certain judges/masters of the BC Supreme Court may grant an application in circumstances where others may deny.

Rule 68 and Expert Costs

Rule 68 of the BC Supreme Court Rules was introduced to deal with certain cases worth $25,000 – $100,000. For such cases this rule was implemented to help bring cases to trial more quickly and with less expense. In doing so certain limits were imposed on how a claim can be prosecuted. One of the most significant restrictions (as it relates to ICBC injury claims) is the restriction of Rule 68(33) which generally limits a party to only one expert witness. Specifically this subrule states that:

(33) Unless the court orders otherwise, a party to an expedited action is entitled, under Rule 40A, to tender the written statement of, or to call to give oral opinion evidence, not more than

(a) one expert of the party’s choosing, and

(b) if the expert referred to in paragraph (a) does not have the expertise necessary to respond to the other party’s expert, one expert to provide the required response.

As many ICBC injury claims lawyers know, it is often difficult to prepare a case for trial with only one expert witness. Often an injured Plaintiff has several treating physicians and it is important to hear from all of them. Similarly it is often a good idea to retain a highly qualified specialist to conduct an ‘independent medical exam’ to summarize all of the Plaintiffs injuries and provide a comprehensive opinion addressing injuries, causation prognosis and need for future treatment. All of this costs money. When a case is prosecuted under Rule 68, then, does the above subsection prevent a successful plaintiff from claiming the costs of hiring more than one expert? Reasons for judgement were released today which say no.
In this case the Plaintiff suffered various injuries in a car accident. The claim was prosecuted under Rule 68 and eventually settled for $25,000. In prosecuting the case the Plaintiff lawyer obtained reports from 5 experts. ICBC argued that Rule 68
restricts the plaintiff to claiming disbursements relating to one expert only, unless (the Plaintiff) has obtained a court order allowing more than one expert…. as the plaintiff did not seek leave from the court to introduce more than one expert report, the plaintiff ought to be limited to claiming for only one expert’s report as part of the disbursements in this action…..based on the principles of proportionality and the express limit on the number of reports permissible in such an action, it was not reasonable or proper to engage this number of experts.
The court rejected this argument and held that in this case it was reasonable to have the Plaintiff assessed by more than one expert. Specifically the court stated that:
in the circumstances of this particular action (where the plaintiff was clearly fragile) it was reasonable and necessary to engage a number of experts to assess the plaintiff. If that is the case, then does the application of Rule 68 still prevent the plaintiff from claiming disbursements for each of those experts? I think not. Rule 68 does not say that a party is restricted, on an assessment of costs, from claiming for the costs of more than one expert. It simply says that, without leave of the court, a party may not elicit testimony from more than one expert witness. (the Plaintiff’s lawyer) was, in my view, obliged as counsel to try and determine the extent of the plaintiff’s injuries and to understand the cause(s) of them. She would not have been able to do that without resort to the opinions of the various experts engaged.

ICBC Claims and Requests for "Particulars"

Reasons for judgement were released today dismissing a defence applicaiton seeking ‘particulars of the Plaintiff’s wage loss and loss of capacity claims“.
The Plaintiff was invovled in a motor vehicle accident. A Statement of Claim was filed in BC Supreme Court suing for, amongst other things ‘loss of earnings, past and prospective, loss of income earning capacity, loss of opportunity to earn income
A statement of Defence was filed. The Defendant then examined the Plaintiff for discovery and requested that the Plaintiff provdie ‘particulars of the wage-loss claim being advanced and loss of capacity claim”. The Plaintiff lawyer did not appear to agree to this request.
In dismissing the motion Master Baker noted that this was not truly a a request for particulars, rather this was a motion seeking evidence. The Court held that this motion should have been brought further to Rule 27 of the BC Rules of Court (the rule dealing with examinaitons for discovery) rather then pursuant to Rule 19 (the rule dealing with pleadings).
Master Baker made some interesting comments implying that such a motion may not be succesful even if brought pursuant to Rule 27 because such requests for evidence may be objectionable as being ‘too vague or speculative‘.

$50,000 Pain and Suffering for Moderate Soft Tissue Injury and Fractured Sternum

Reasons for judgement were released today awarding a Plaintiff just over $100,000 in compensation for injuries sustained in a 2005 Vernon car accident including $50,000 for non-pecuniary damages (pain and suffering).
The accident occurred when the Defendant pulled out of an alleyway and struck the Plaintiff’s vehicle. The crash was significant causing the Plaintiff’s 1999 Honda Civic extensive damage.
Mr. Justice Barrow summarized the Plaintiff’s injuries as follows:
I am satisfied that the plaintiff sustained a moderate soft tissue injury to her back in the motor vehicle accident. Both Dr. Coghlan and Dr. Smart diagnosed her injury as such. Further, she sustained a fracture to her sternum. That fracture likely disrupted the soft tissues in the area of her sternum as her body compensated for the boney injury. Those injuries resulted in her being entirely unable to perform the physical labours associated with the operation of the family farm for approximately six months and continued to substantially impair that ability until the farm was sold in the summer of 2006. I am satisfied that they continue to limit her function today in the sense that she is unable to lift her grandchildren and she experiences difficulty in doing other activities that she formerly enjoyed, including keeping her house, tending to her garden and sleeping. As to the future, these limitations will likely continue although they will be moderate. I am also satisfied that she would benefit from a program of physical strengthening. While I understand her reluctance to attend a gym, that would be of benefit to her. It is not the defendant’s responsibility if she chooses not to follow her physician’s advice in that regard.
In finding that $50,000 was fair for Pain and Suffering Justice Barrow noted that “(the Plaintiff) was unable to return to farming, an occupation which was a source of enjoyment and fulfillment to her. She has suffered a loss of independence in that she is unable to keep her house to the standard that she formerly had and is forced to rely on her children to do that for her”

ICBC Claims and Trial Splitting

ICBC claims can be very expensive to bring to trial. Typically, most of the expenses are associated with the cost of presenting medical opinion evidence. Medical opinion evidence is often required to prove that injuries are caused by an accident, to discuss reasonable treatments (addressing special damages), and to address the specific diagnosis and prognosis of car accident related injuries. Such opinions can cost thousands of dollars to obtain and thousands more to present in court.
What if you have a case that is very risky? What if the trial outcome of ‘who is at fault’ is uncertain and should you lose on that issue you don’t want to be stuck with thousands of dollars of expenses for expert witness fees? Can you do anything about it? As with many areas of the law, the answer is sometimes.
Rule 39(29) of the BC Supreme Court Rules deals with splitting the issues at trial. In an ICBC claim, it is possible to use this rule to ask a court to let the liability (fault) part of a trial run first prior to the quantum part (the part that deals with the value of the ICBC claim).
Specifically, Rule 39(29) states that:
The court may order that one or more questions of fact or law arising in an action be tried and determined before the others, and upon the determination a party may move for judgment, and the court, if satisfied that the determination is conclusive of all or some of the issues between the parties, may grant judgment.
If the court allows an order splitting liability and quantum, and if you lose your ICBC claim at trial on the issue of liability, that could potentially save you tens of thousands of dollars by having the case dismissed prior to presenting all of your medical evidence.
Reasons for judgement were released today where the Honourable Madam Justice Allan refused to sever the issues of quantum and fault.
In paragraphs 11-15 her Ladyship summarizes some of the principles court’s consider when reviewing such an application. I set out these paragraphs below:

[11] There is ample authority for the proposition that an applicant must establish that there exist extraordinary, exceptional or compelling reasons for severance, and not merely that it would be just and convenient to order severance: MacEachern v. Rennie, 2008 BCSC 1064; Hynes v. Westfair Foods Ltd., 2008 BCSC 637; and Westwick v. Culbert, [1992] B.C.J. No. 2121.

[12] It is true that some recent cases have held that a judge’s discretion to sever an issue or issues is not restricted to “extraordinary or exceptional circumstances”: Nguyen v. Bains, 2001 BCSC 1130; Enterprising Minds Technology Inc. v. Lululemon Athletica Inc., 2006 BCSC 1168. However, there must be some compelling reasons to order severance, such as a real likelihood of a significant savings in time and expense.

[13] Mr. McGivern relies heavily on Vaughn v. Starko, [2004] Y.J. No. 50, a decision of the Yukon Supreme Court. In that case, the plaintiff sought a determination of liability pursuant to Rule 18A with damages to be assessed at a later date. Gower J. rejected the defendant’s argument that there must be extraordinary, exceptional or compelling reasons for a severance of liability and damages. He drew a distinction between applications under Rule 39(29) and Rule 18A. He concluded at para. 48 it would not be unjust to decide the issue of liability on a summary basis and that it would be appropriate to sever liability from the issue of damages. Because the application was made under Rule 18A, he found that it was not necessary to apply the heavier onus for severance that Rule 39(29) imposed.

[14] With respect, I do not agree with the analysis in that case. Rule 18A is a method of trying a case summarily. The issues in determining whether Rule 18A is suitable are (1) whether it is possible to find the facts necessary to decide the issues of fact or law; and (2) whether it would be unjust to decide those issues summarily. On the other hand, Rule 39(29) provides the Court with the discretion to try one question of fact or law before another and give judgment. A determination of an application for severance must be informed by the case law that relates to the issue of severance, not to the issue of disposing of an action summarily.

[15] In an earlier case, Legrand v. Canning and Canning, 2000 BCSC 1633, Scarth J. dealt with a severance application brought under Rule 18A. He concluded that the plaintiff had not established extraordinary, exceptional or compelling reasons for severance. In that case, the liability issues were not plain in the circumstances and there was a further issue of whether the plaintiff was contributorily negligent. Evidence relating to the severity of the impact in question was relevant to the issues of liability and quantum.

Rule 39(29) is worth reviewing for anyone advancing an ICBC claim where the issue of fault is uncertain to see if time and expense can be saved by severing the issues of fault and quantum.

Rule 37B – The First Precedent

Today I’m blogging from the sunny City of Vernon, having completed an examination for discovery a little earlier than expected with some time on my hands prior to returning to Victoria.
In the first precedent that I am aware of concening Rule 37B (The new BC Supreme Court Rule dealing with formal settlement offers) reasons for judgement were released today refusing to award a successful defendant double costs after trial.
While this is not and ICBC claim, nor even a personal injury claim for that matter, the factors that the court considered in refusing to order double costs may be relevant in an ICBC claim.
The facts of the case briefly are as follows: The Defendant was sued by the SPCA for the costs of care the SPCA incurred for some neglected animals. The Defendant denied liability and made a formal offer to settle the claim for $1. The Defendant succeeded at trial. In such a scenario, under the old Rule 37, the Defendant would likely be entitled to ‘double costs’. Here, the Defendant asked the court to excercises its discretion under the new Rule 37B to award double costs.
The court refused to do so setting out the following reasons:

The Law

[12] Rule 37B(1) reads in part:

(1) in this rule “offer to settle” means

an offer to settle made and delivered before July 2, 2008 under Rule 37, as that rule read on the date of the offer to settle, and in relation to which no order was made under that rule …

[13] In the circumstances, Rule 37B applies to the offer made by Mr. Baker.

[14] Rule 37B (5) and (6) read:

(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.

(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.

[15] Subrule (5) is permissive. It empowers the court to make either type of order mentioned in the subrule. By necessary implication, it contemplates that the court may make an order that denies one of the two forms of relief set out in the subrule……….

The court then went on to canvass some prinicples of Bankruptcy law and concluded that the Defendant’s offerwas not one that reasonably ought to have been accepted (pursuant to Rule 37B(6)(a) on the date of the offer to settle or before the Rule 18A hearing at which time, pursuant to Rule 37(13), the offer was no longer capable of acceptance.

The court then went on to deal with Rule 37B(6)(b) and held as follows:

Rule 37B (6) (b)

Rule 37B (6) (b)

[34] This subrule indicates that the court, when exercising its discretion under Rule 37B should consider the relationship between the offer and the result in the action. In this case, the offer to settle was for one dollar. There was no counterclaim. BCSPCA’s only risk was costs. An offer that would confer a significant benefit, aside from costs, on a party who failed to accept the offer would be more likely to attract double costs under Rule 37B that an offer of the type made by Mr. Baker.

Rule 37B (6) c)

[35] The means of the parties may be taken into consideration when exercising discretion under Rule 37B. The BCSPCA is a non-profit society dedicated to prevention of cruelty to animals. It is a substantial society. It had an operating surplus of $379,022 in 2007. Mr. Baker has not disclosed his financial circumstances. His counsel stated in submissions that he is of “modest means”.

Result

[36] In all the circumstances, Mr. Baker has not established that the offer he made was an offer that ought reasonably to have been accepted by BCSPCA under the law applicable during its currency. Acceptance would not have conferred a significant benefit on BCSPCA other that its effect on costs. Although BCSPCA is likely the party most able to bear the costs of the litigation, Mr. Baker has not shown that an award of double costs is, considering the other factors bearing on an award of costs under Rule 37B, necessary to avoid the imposition of hardship in the litigation.

It remains to be seen what the number of soon to be coming precedents will ultimatly hold for the interpretation of this rule, but this case illustrates that courts may not take to kindly to ‘nuisance value’ settlement offers of $1.

Contact

If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

“Work hard, be kind and enjoy the ride!”
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