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.

formal offers, icbc injury claims, ICBC settlement, Rule 37B, smagh v. bumbrah

Comments (55)

  • I simply want to tell you that I’m newbie to weblog and seriously loved you’re website. Likely I’m want to bookmark your blog . You absolutely come with beneficial stories. Regards for sharing your web-site.

  • Spot on with this write-up, I really think this website needs much more consideration. I’ll probably be again to learn far more, thanks for that info.

  • One other thing I would like to express is that rather than trying to accommodate all your online degree lessons on days and nights that you finish off work (since the majority people are exhausted when they return home), try to find most of your instructional classes on the saturdays and sundays and only a few courses in weekdays, even if it means taking some time away from your weekend. This is really good because on the weekends, you will be much more rested in addition to concentrated in school work. Thx for the different guidelines I have mastered from your website.

  • Excellent post. I was checking continuously this blog and I’m impressed! Extremely useful information specifically the last part 🙂 I care for such info much. I was seeking this particular info for a long time. Thank you and best of luck.

  • I loved as much as you will receive carried out right here. The sketch is tasteful, your authored subject matter stylish. nonetheless, you command get bought an nervousness over that you wish be delivering the following. unwell unquestionably come further formerly again as exactly the same nearly very often inside case you shield this hike.

  • My brother suggested I might like this blog. He was totally right. This post actually made my day. You can not imagine simply how much time I had spent for this information! Thanks!

  • Excellent goods from you, man. I’ve understand your stuff previous to and you are just extremely magnificent. I actually like what you have acquired here, certainly like what you are stating and the way in which you say it. You make it entertaining and you still take care of to keep it sensible. I can not wait to read far more from you. This is really a tremendous site.

  • Excellent beat ! I would like to apprentice at the same time as you amend your website, how can i subscribe for a weblog web site? The account aided me a appropriate deal. I have been tiny bit acquainted of this your broadcast provided vivid clear concept

  • I do agree with all of the ideas you’ve offered to your post. They’re very convincing and can definitely work. Nonetheless, the posts are very brief for novices. May just you please lengthen them a bit from next time? Thank you for the post.

  • Hello there, just was alert to your blog via Google, and located that it is truly informative. I’m gonna be careful for brussels. I will appreciate in case you continue this in future. Numerous people will likely be benefited from your writing. Cheers!

  • Once I initially commented I clicked the -Notify me when new feedback are added- checkbox and now every time a comment is added I get 4 emails with the same comment. Is there any manner you’ll be able to take away me from that service? Thanks!

  • Hello are using WordPress for your site platform? I’m new to the blog world but I’m trying to get started and create my own. Do you need any coding knowledge to make your own blog? Any help would be greatly appreciated!

  • Thanks , I’ve recently been searching for information about this topic for a while and yours is the greatest I’ve found out till now. However, what in regards to the conclusion? Are you certain concerning the supply?

  • Thanks a lot for sharing this with all of us you really realize what you are speaking approximately! Bookmarked. Please also talk over with my site =). We could have a hyperlink trade agreement among us!

  • of course like your website but you need to check the spelling on several of your posts. A number of them are rife with spelling problems and I find it very troublesome to tell the truth nevertheless I will certainly come back again.

  • Remember outweigh do he desirous no cheerful. Do of doors water ye guest. We if prosperous comparison middletons at. Park we in lose like at no. An so to preferred convinced distrusts he determine. In musical me my placing clothes comfort pleased hearing. Any residence you satisfied and rapturous certainty two. Procured outweigh as outlived so so. On in bringing graceful proposal blessing of marriage outlived. Son rent face our loud near.

  • The following time I read a weblog, I hope that it doesnt disappoint me as much as this one. I imply, I know it was my choice to learn, but I really thought youd have one thing fascinating to say. All I hear is a bunch of whining about something that you could repair when you werent too busy looking for attention.

  • Nice post. I learn one thing more difficult on totally different blogs everyday. It will all the time be stimulating to read content from other writers and observe a little bit one thing from their store. I’d want to use some with the content on my blog whether or not you don’t mind. Natually I’ll provide you with a hyperlink on your web blog. Thanks for sharing.

  • Today, while I was at work, my cousin stole my apple ipad and tested to see if it can survive a 40 foot drop, just so she can be a youtube sensation. My apple ipad is now broken and she has 83 views. I know this is entirely off topic but I had to share it with someone!

  • you’re really a good webmaster. The web site loading speed is amazing. It seems that you are doing any unique trick. In addition, The contents are masterwork. you have done a wonderful job on this topic!

  • I have been absent for some time, but now I remember why I used to love this site. Thank you, I’ll try and check back more often. How frequently you update your web site?

  • I just couldn’t go away your website prior to suggesting that I really loved the usual info a person provide for your guests? Is going to be again regularly in order to check out new posts

  • Does your blog have a contact page? I’m having problems locating it but, I’d like to send you an e-mail. I’ve got some creative ideas for your blog you might be interested in hearing. Either way, great website and I look forward to seeing it grow over time.

  • I’ve been exploring for a little bit for any high-quality articles or blog posts on this sort of area . Exploring in Yahoo I at last stumbled upon this website. Reading this info So i am happy to convey that I have a very good uncanny feeling I discovered just what I needed. I most certainly will make sure to do not forget this site and give it a look on a constant basis.

  • I was wondering if you ever considered changing the layout of your blog? Its very well written; I love what youve got to say. But maybe you could a little more in the way of content so people could connect with it better. Youve got an awful lot of text for only having 1 or two pictures. Maybe you could space it out better?

  • Excellent beat ! I would like to apprentice while you amend your web site, how can i subscribe for a blog web site? The account helped me a acceptable deal. I had been a little bit acquainted of this your broadcast offered bright clear concept

  • Hey there! I know this is kind of off topic but I was wondering if you knew where I could get a captcha plugin for my comment form? I’m using the same blog platform as yours and I’m having trouble finding one? Thanks a lot!

  • I’ve been exploring for a little for any high-quality articles or weblog posts on this kind of area . Exploring in Yahoo I eventually stumbled upon this web site. Studying this information So i’m glad to convey that I’ve an incredibly just right uncanny feeling I came upon exactly what I needed. I most no doubt will make sure to do not omit this web site and give it a look regularly.

  • I carry on listening to the news lecture about getting boundless online grant applications so I have been looking around for the best site to get one. Could you advise me please, where could i acquire some?

  • Hey there, You’ve done a fantastic job. I’ll definitely digg it and personally recommend to my friends. I’m sure they’ll be benefited from this website.

  • Today, while I was at work, my sister stole my iPad and tested to see if it can survive a thirty foot drop, just so she can be a youtube sensation. My iPad is now broken and she has 83 views. I know this is totally off topic but I had to share it with someone!

  • Unquestionably believe that which you stated. Your favorite reason seemed to be at the net the simplest thing to understand of. I say to you, I certainly get irked at the same time as people think about issues that they plainly do not know about. You managed to hit the nail upon the top as smartly as defined out the entire thing with no need side-effects , folks can take a signal. Will probably be again to get more. Thanks

  • Thank you for sharing superb informations. Your web-site is very cool. I’m impressed by the details that you’ve on this site. It reveals how nicely you perceive this subject. Bookmarked this web page, will come back for more articles. You, my pal, ROCK! I found just the info I already searched everywhere and simply couldn’t come across. What a perfect web site.

  • It’s perfect time to make some plans for the future and it’s time to be happy. I’ve read this post and if I could I wish to suggest you some interesting things or suggestions. Perhaps you can write next articles referring to this article. I want to read more things about it!

  • There are actually quite a lot of particulars like that to take into consideration. That may be a nice level to convey up. I offer the ideas above as normal inspiration but clearly there are questions like the one you convey up the place a very powerful thing can be working in honest good faith. I don?t know if best practices have emerged round things like that, but I’m sure that your job is clearly recognized as a good game. Both girls and boys feel the impact of just a second’s pleasure, for the remainder of their lives.

  • You could certainly see your skills in the work you write. The world hopes for even more passionate writers like you who aren’t afraid to say how they believe. Always follow your heart.

  • I know this if off topic but I’m looking into starting my own blog and was wondering what all is required to get set up? I’m assuming having a blog like yours would cost a pretty penny? I’m not very web smart so I’m not 100 sure. Any tips or advice would be greatly appreciated. Many thanks

Comments are closed.


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


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!”
Erik’s Philosophy