More on Rule 66, Rule 37B, ICBC Claims and Costs
Reasons for judgment were released today by the BC Supreme Court dealing with 2 issues of interest to me, Costs consequences under Rule 66 and Rule 37B.
In today’s case (Schnare v. Roberts) the Plaintiff was injured in a motor vehicle collision. The Plaintiff sued for damages under Rule 66. The Plaintiff made a formal offer of settlement and ICBC did not accept it. The Plaintiff proceeded to trial and the verdict more than doubled the Plaintiff’s settlement offer. (click here to read my previous post regarding the trial judgment).
Today’s judgment dealt with the costs consequences. ICBC argued that the Plaintiff should be limited to costs under Rule 66 (which are capped at an amount less than regular Tariff costs under the BC Supreme Court Rules) because the lawsuit was brought initially under Rule 66. Madam Justice Adair disagreed with ICBC’s submission and noted that since the trial went beyond the Rule 66 2 day limit that constituted ‘special circumstances’ which permitted the court to order costs outside of the Rule 66 costs. Madam Justice Adair reasoned as follows:
 Sub-rules (29) and (29.1) of Rule 66 provide (italics added):
(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.
(29.1) In exercising its discretion under subrule (29), the court may consider a settlement offer delivered in accordance with Rule 37 or 37A whether or not other special circumstances exist.
Rules 37 and 37A have been repealed and replaced with Rule 37B.
 In my view, Ms. Schnare’s case was not the type of case contemplated by Rule 66. By October 2008, the parties themselves realized that two days would not be sufficient for trial. Even a more generous estimate of three days turned out to be insufficient to deal with the evidence on the relevant issues in the case and with submissions (including submissions on the admissibility of documentary evidence). Although court adjourned somewhat early in the afternoon on January 28, 2009, it sat late on January 29, 2009, to ensure that a witness’ evidence could be completed. I did not consider counsel were inefficient in their use of time. I am satisfied that the length of the trial itself constitutes “special circumstances” in this case. See Kailey v. Kellner, 2008 BCSC 224, 56 C.P.C. (6th) 40, where, in comparable circumstances, Mr. Justice Parrett also found the length the trial constituted “special circumstances” justifying a departure from the fixed costs under Rule 66(29), and awarded costs on Scale B.
 In my opinion, the appropriate order respecting costs (before considering matters under Rule 37B) was and is that the plaintiff should recover her costs on Scale B of Appendix B.
The second issue worth noting were the costs consequences under Rule 37B. The Plaintiff argued that they should be awarded double costs from the date of their formal settlement offer onward. Madam Justice agreed and engaged in the below analysis and in doing so made some critical comments about an expert physician (Dr. McPherson) who ‘was very closely tied to ICBC…for over a decade‘ in the defence of personal injury claims:
19] Should the plaintiff’s January 26, 2009 offer have been accepted, and the costs of the trial avoided? Analysis of this question is not to be based on hindsight once the final result is known, as noted in Bailey v. Jang, 2008 BCSC 1372, 63 C.P.C. (6th) 291, at para. 24. Nevertheless, in my view, the defendants should have given that offer much more serious consideration when looking at the risks of going to trial.
 The defendants’ defence to Ms. Schnare’s claims for substantial damages rested primarily on the shoulders of their expert, Dr. McPherson, the only defence witness. However, there were serious risks in that strategy. Dr. McPherson was very closely tied to ICBC, and had been for over a decade. This was not a secret, and had been the subject of media reports, which were used to cross-examine Dr. McPherson. As counsel for the defendants must have appreciated, these ties made an issue of Dr. McPherson’s impartiality and credibility, and impaired his value as a expert. Dr. McPherson’s evidence, unlike that of Dr. Van Rijn and Mr. McLean, did nothing to explain Ms. Schnare’s continuing symptoms and physical difficulties, and provided little assistance to the court. His rejection of the possibility that there could be movement of Ms. Schnare’s sacroiliac joints led inevitably to his conclusion that her complaints could not be accident-related, and to speculate that Ms. Schnare possibly had a condition that Dr. McPherson conceded was extremely rare. As I noted in my reasons, Dr. McPherson was unhelpfully dismissive of opinions other than his own. In my view, the defendants’ reliance on Dr. McPherson’s opinions to defend against Ms. Schnare’s claims was unreasonable in face of the plaintiff’s eve-of-trial offer to settle. The offer represented a very substantial discount from the amounts Ms. Schnare sought at trial. A more reasonable assessment of the potential risk that Dr. McPherson’s opinions would be unpersuasive (as I found them) should have led the defendants to accept Ms. Schnare’s last offer, in which case the costs of the trial would have been avoided. This factor supports the plaintiff.
 The final damages awarded to Ms. Schnare were more than twice the amount of Ms. Schnare’s offer. This factor also supports the plaintiff.
 With respect to the relative financial circumstances of the parties, I consider this factor neutral.
 Taking into account the underlying legislative policy behind Rule 37B, that Ms. Schnare’s offer represented a very substantial discount off her damage claims presented at trial and if accepted would have avoided the costs of the trial, and that the amount awarded was significantly more than the amount of Ms. Schnare’s offer, in my view it is appropriate to award the plaintiff double costs for steps taken after January 26, 2009.