Rule 37B and the Significance of Insurance

(Please note the case discussed in this post was upheld by the BC Court of Appeal in June, 2010.  You can click here to read my post discussing the BCCA decision)
When a party beats a formal settlement offer at trial in the BC Supreme Court the existence of the offer can be brought to the courts attention and the Court can then award or deprive a party of Costs as permitted under Rule 37B.
In determining costs consequences Courts have discretion and are to consider various factors as set out in Rule 37B(6).  One of these factors requires the court to consider ‘the relative financial circumstances of the parties‘.  One of the matters still being worked out by BC Courts under Rule 37B is whether a party being insured is a relevant factor when weighing the financial circumstances of the parties.
Today reasons for judgement were released by the BC Supreme Court, Chilliwack Registry addressing this matter.  In today’s case (Smith v. Tedford) the Plaintiff made a settlement offer.  The defendant did not immediately accept and proceeded to trial.  Several days into trial the Defendant accepted the offer.  At issue was what costs the Defendant should pay the Plaintiff.
The Defendant was apparently insured with ICBC.  In arguing what costs consequences should follow the Defendant submitted that the fact insurance was in place was not a relevant consideration.  In asking the court to consider the ‘relevant financial circumstances of the parties‘ the defendant put forward an affidavit setting out her ‘modest circumstances‘.
Mr. Justice Grist rejected this argument and held that the existence of insurance was relevant and could properly be considered by the Court.  Specifically Mr. Justice Grist reasoned as follows:

[14]         Here, I think the consideration stipulated in Rule 37B(6)(c), “the relative financial circumstances of the parties,” also has a bearing. The plaintiff has very limited financial resources and the personal defendant had the advantage of a defence conducted by her automobile insurer. This fact should not constantly put the defence at a disadvantage on costs but, in my view, it is particularly relevant when a late acceptance of an outstanding offer has required the plaintiff to submit to a less certain and potentially prohibitively costly mode of trial.

[15]         Counsel for the defence argues that insurer’s conduct of the case is not a relevant feature and cites Bailey v. Jang, [2008] B.C.J. No. 1952, in this regard. In Bailey the court held that the fact a defendant’s case was conducted by the defendant’s insurer was irrelevant to the Rule 37B(6)(c) consideration of relative financial circumstances. Almost contemporaneous to this decision, however, the issue was independently considered in Radke v. Parry, [2008] B.C.J. No. 1991. In the Radke case, the court awarded the plaintiff double costs for a trial ultimately settled by the exchange of a further plaintiff’s offer and the defendants’ acceptance of the offer, in circumstances where the plaintiff had earlier made a much more modest initial offer. The relevant comment (at para. 42) was as follows:

…The defendants, represented by ICBC, had substantially greater resources to finance a trial than the individual plaintiff. Had the defendants accepted the plaintiff’s initial reasonable offer, the plaintiff would not have had to incur the significant costs associated with nearly two weeks of trial.

[16]         I choose to follow Radke in this regard. The ability to have a case advanced by experienced and well funded counsel is, to my mind, a resource that should be taken into account in exercising the judicial discretion stipulated under the new Rule. As an example of how the obvious intent of the Rule can be perverted if the consideration is made independent of insurance coverage, here counsel for the defendant produced an affidavit speaking of her modest circumstances. She, like the plaintiff, is a young person employed at near minimum wage. This was particularly hard to accept as a relevant consideration after the 6-day course of this abbreviated trial, during which the Insurance Corporation twice had separate counsel appear to argue issues that might easily have been dealt with by the two trial counsel appearing on the defendants’ behalf.

[17]         The appropriate order of costs is to award costs of the action to the plaintiff with the cost of the trial to be assessed as double costs, all at Scale B.

It appears that this interpretation may be gaining favor with BC Courts and hopefully this trend continues.  As always I will continue to report on these cases as they come to my attention.

icbc and rule 37b, icbc injury claims, insurance and rule 37b, Rule 37B, settlemet offers, smith v. tedford

Comments (49)

  • I just want to mention I am just beginner to weblog and truly liked your web-site. More than likely I’m planning to bookmark your website . You definitely have good well written articles. Thanks a lot for sharing with us your website page.

  • Fantastic beat ! I would like to apprentice while you amend your website, how can i subscribe for a blog web site? The account helped me a applicable deal. I were a little bit familiar of this your broadcast provided vivid clear idea

  • I have learned many important things as a result of your post. I’d also like to state that there is a situation in which you will apply for a loan and don’t need a co-signer such as a Fed Student Support Loan. However, if you are getting a borrowing arrangement through a traditional creditor then you need to be prepared to have a co-signer ready to enable you to. The lenders will probably base any decision on a few variables but the most important will be your credit history. There are some creditors that will additionally look at your job history and make a decision based on this but in many instances it will depend on your scores.

  • After study a few of the weblog posts on your website now, and I truly like your method of blogging. I bookmarked it to my bookmark web site checklist and shall be checking again soon. Pls take a look at my site as well and let me know what you think.

  • I have been surfing online more than three hours today, yet I never found any interesting article like yours. It is pretty worth enough for me. In my opinion, if all web owners and bloggers made good content as you did, the web will be much more useful than ever before.

  • This is very interesting, You are a very skilled blogger. I’ve joined your rss feed and look forward to seeking more of your magnificent post. Also, I have shared your site in my social networks!

  • I in addition to my buddies were found to be looking through the excellent secrets found on your website while then got a horrible feeling I never thanked you for those techniques. My young men became for that reason joyful to read through them and now have without a doubt been tapping into those things. Many thanks for really being considerably helpful and for using this kind of awesome information millions of individuals are really needing to be informed on. My honest apologies for not saying thanks to you sooner.

  • Spot on with this write-up, I actually assume this website wants rather more consideration. I’ll most likely be once more to learn rather more, thanks for that info.

  • Wow, wonderful blog layout! How long have you been blogging for? you make blogging look easy. The overall look of your site is fantastic, let alone the content!

  • Nearly all of what you state is astonishingly legitimate and that makes me ponder why I hadn’t looked at this with this light previously. This article truly did turn the light on for me as far as this particular topic goes. However there is actually one particular issue I am not really too comfy with and while I attempt to reconcile that with the central theme of the issue, allow me see what the rest of your visitors have to say.Nicely done.

  • Wow! This could be one particular of the most helpful blogs We’ve ever arrive across on this subject. Actually Fantastic. I’m also an expert in this topic so I can understand your effort.

  • I have seen plenty of useful issues on your site about pc’s. However, I’ve the viewpoint that laptop computers are still not quite powerful sufficiently to be a option if you frequently do tasks that require loads of power, for instance video editing. But for internet surfing, statement processing, and the majority of other typical computer functions they are all right, provided you don’t mind the tiny screen size. Thank you for sharing your notions.

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

  • I have observed that online education is getting common because attaining your college degree online has turned into a popular method for many people. Many people have definitely not had a possible opportunity to attend a conventional college or university although seek the elevated earning possibilities and career advancement that a Bachelor Degree affords. Still other people might have a diploma in one field but would like to pursue one thing they now possess an interest in.

  • My programmer is trying to persuade me to move to .net from PHP. I have always disliked the idea because of the expenses. But he’s tryiong none the less. I’ve been using WordPress on numerous websites for about a year and am nervous about switching to another platform. I have heard good things about Is there a way I can transfer all my wordpress content into it? Any kind of help would be greatly appreciated!

  • I’ve learned some important things through your post. I will also like to mention that there might be situation in which you will make application for a loan and don’t need a co-signer such as a Fed Student Aid Loan. However, if you are getting financing through a classic banker then you need to be prepared to have a cosigner ready to assist you to. The lenders will base any decision on a few factors but the main one will be your credit worthiness. There are some lenders that will furthermore look at your work history and make up your mind based on this but in most cases it will be based on on your rating.

  • It is appropriate time to make some plans for the future and it is time to be happy. I have read this post and if I could I wish to suggest you few interesting things or suggestions. Maybe you can write next articles referring to this article. I wish to read more things about it!

  • I’m not sure exactly why but this website is loading very slow for me. Is anyone else having this issue or is it a issue on my end? I’ll check back later and see if the problem still exists.

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

  • Thank you, I have recently been searching for info approximately this subject for ages and yours is the best I’ve came upon so far. But, what about the bottom line? Are you sure in regards to the supply?

  • Thank you for another informative website. Where else could I get that type of info written in such an ideal way? I’ve a project that I’m just now working on, and I’ve been on the look out for such information.

  • I’m extremely impressed with your writing skills as well as with the layout on your blog. Is this a paid theme or did you modify it yourself? Either way keep up the nice quality writing, it’s rare to see a great blog like this one nowadays..

  • Hey very nice site!! Guy .. Excellent .. Superb .. I’ll bookmark your web site and take the feeds also…I am glad to find a lot of useful information right here in the post, we want develop more strategies on this regard, thank you for sharing.

  • Hello There. I found your blog using msn. This is an extremely well written article. I will make sure to bookmark it and come back to read more of your useful information. Thanks for the post. I will definitely comeback.

  • It’s really a great and useful piece of information. I’m glad that you just shared this helpful info with us. Please stay us up to date like this. Thanks for sharing.

  • I like the valuable info you provide in your articles. I’ll bookmark your weblog and check again here regularly. I am quite certain I’ll learn lots of new stuff right here! Best of luck for the next!

  • Hi there, just became alert to your blog through Google, and found that it is truly informative. I’m going to watch out for brussels. I’ll be grateful if you continue this in future. A lot of people will be benefited from your writing. Cheers!

  • Great article. It is very unfortunate that over the last years, the travel industry has had to handle terrorism, SARS, tsunamis, bird flu, swine flu, as well as first ever entire global recession. Through it all the industry has proven to be strong, resilient and dynamic, discovering new strategies to deal with hardship. There are usually fresh complications and opportunity to which the field must once again adapt and act in response.

  • Thanks for the sensible critique. Me and my neighbor were just preparing to do a little research on this. We got a grab a book from our area library but I think I learned more from this post. I’m very glad to see such excellent information being shared freely out there.

  • I¡¦ve been exploring for a bit for any high-quality articles or blog posts in this sort of area . Exploring in Yahoo I ultimately stumbled upon this website. Reading this info So i am satisfied to convey that I’ve a very good uncanny feeling I found out just what I needed. I most surely will make certain to don¡¦t forget this site and provides it a glance regularly.

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