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:
 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.
(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.
 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.
 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.
 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.
 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
 This factor favours an award of costs to the defendant. The jury awarded an amount substantially less than the defendant’s offer.
 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,  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.
 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
 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.
 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:
 Second, [the plaintiff] places her financial position against that of ICBC, as opposed to that of the defendants.
 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.
 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.
 In Abma v. Paul, 2009 BCSC 60,  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.
 The decision in Bailey was also followed in Kanda v. Jackson (19 December 2008), Vancouver M030259 (S.C.)).
 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.
 This third factor is not helpful in this case.
(d) Any other factor the court considers appropriate
 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.
 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.
 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.
 There has been mixed success on this application for costs. No costs are awarded in connection with this application.