Reasons for judgement were released today by the BC Supreme Court, Kelowna Registry, addressing whether an ICBC tort advance has any effect in a costs order following a trial.
In today’s case (Jackson v. Yusishen) the Plaintiff was injured in a 2009 collision. Prior to trial the Plaintiff received a $5,000 advance from ICBC. Although various offers were made during the course of the proceedings at the start of trial the Defendant had a formal settlement offer of $100,000 and the Plaintiff’s formal offer was for $2 million.
After a lengthy jury trial the Plaintiff’s claim was largely rejected and damages of $5,000 were assessed. Mr. Justice Betton awarded the Plaintiff costs up to the time that ICBC made their formal offer and ordered that both parties bear their own costs thereafter. In finding that the advance of damages had no bearing in the costs assessment the Court provided the following reasons:  The plaintiff had requested an advance and received a $5,000 advance on June 4, 2013. When the advance was provided, the attached letter contained the following: …The advance is to be applied first towards any heads of damage which will attract pre-judgment court ordered interest. ..  I will comment briefly on the advance payment of $5,000. This was not an offer to settle in accordance with the formal requirements of Rule 9-1. It does have the practical effect of making the appropriate order here a dismissal of the plaintiff’s claim. I do not find that it has any bearing on my order as to costs in the circumstances here.
In 2009 the BC Court of Appeal made it clear that the BC Supreme Court has no authority to make a stand-alone order for an advance payment of damages and any advance payment order must piggy-back another order relying on Rule 13-1(19).
When faced with an order adjourning an injury trial where liability is admitted that is a good time to seek an advance payment order. If, for whatever reason such an order cannot be spoken to at the time of adjournment, it is a good practice to seek leave that as part of the adjournment a plaintiff has permission to bring an advance payment application at a later time. Such a practice was demonstrated in reasons for judgement released this week by the BC Supreme Court, New Westminster Registry.
In this week’s case (Estey v. Bateson) the Plaintiff was injured in a 2008 collision. The matter was set down for trial but was ultimately adjourned. At the time the Plaintiff had the foresight to seek an order granting leave to apply for an advance as a term of the adjournment Ultimately a $15,000 advance was ordered and the Court provided the following summary of the legal principles to be considered: 1] The plaintiff applies for an advance of $35,000 on his claim for damages relating to a motor vehicle accident which occurred on August 16, 2008 and for costs thrown away as a result of the adjournment.  Liability has been admitted and the trial, which was set to commence on February 13, 2012 for 10 days, was adjourned on that date by Fitzpatrick J.; at the time of the adjournment leave was granted to the plaintiff to apply for an advance and for costs thrown away…  Master Keighley considered the issue of the jurisdiction to order an advance other than as a term of an adjournment in the case of Cikojevic v. Timm, 2007 BCSC 1689 and found that such jurisdiction does exist. In addition, I rely upon the order of Fitzpatrick J. which expressly granted the plaintiff liberty to make such application in this particular case.  The court has a discretionary authority to order that an advance be paid but such order should only be made in special circumstances and only if the judge or master is satisfied that there is no possibility that the ultimate award of damages will be less than the amount of the advance: see Serban v. Casselman,  B.C.J. No. 254 (B.C.C.A.) and Cikojevic v. Timm, 2008 BCSC 74. Two of the considerations which the court must address are the length of time which will pass until trial and whether the delay will cause the plaintiff financial hardship: see O’Ruairc v. Pelletier, 2002 BCSC 1107 and Cikojevic.
While Defendants in lawsuits are generally not obliged to make any advance payments to a Plaintiff, in unique circumstances the BC Supreme Court can compel a Defendant to pay an advance. Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing this judicial power and the circumstances when it should be exercised.
In last week’s case (Gill v. West) the Plaintiff was involved in 10 motor vehicle accidents for which he was suing for damages. Liability was admitted in some of the actions. The Plaintiff alleged that the various crashes caused indivisible injuries and he was disabled as a result. He applied for various orders including an order that he be advanced “$150,000 forthwith on account of damages“. Madam Justice Wedge dismissed the Plaintiff’s request and in doing so provided the following comments on this area of the law:
The plaintiff is frank to admit that it seeks the order concerning liability in the one action, and the order to have the fourth action heard with the other three, for the express purpose of obtaining the advance payment order. The plaintiff acknowledged he cannot obtain an order for advance payment of damages unless it is granted in conjunction with another order.
In the case of Lines v. Gordon (2009), 90 B.C.L.R. (4th) 52 (C.A.), our Court of Appeal made it clear that the Rules of Court do not give this Court jurisdiction to make a stand alone order for an advance payment of damages, nor does this Court have inherent jurisdiction to do so.
In the Lines decision, the Court referred to the wording of then Rule 1(12), now Rule 13-1(19), which states as follows: “When making an order under these Rules, the court may impose terms and conditions and give directions as it thinks just.” Based on that wording — and specifically the words “when making an order under these Rules,” — the Court in Lines stated that there must be a temporal connection between an order for an advance payment and another order…
I will now turn to the law governing this application. While Lines v. Gordon states that there must be a temporal connection between the order for advance payment of damages and the granting of another order, temporal proximity is only one factor. More broadly, the order for advance payment must be a just one in all of the circumstances: Serban v. Casselman (1995), 2 B.C.L.R. (3d) 316 (C.A.).
The question is always whether the circumstances of the primary order, in conjunction with which the advance payment order is sought, are sufficiently compelling to justify an advance payment of damages. The authorities make clear that a payment of damages in advance of trial is only to be made in exceptional circumstances arising from the making of the primary order. For example, where the defendant applies for an adjournment of a personal injury trial and the plaintiff’s circumstances are financially tenuous, it may be just in the circumstances to order an advance payment of damages in conjunction with the order for an adjournment. However, such an advance payment order will not be made unless the judge is completely satisfied there is no possibility the assessment of damages at trial will be less than the amount of the advance payment: Serban v. Casselman. Further, the court will exercise its discretion to order an advance payment only where liability is not an issue: Andruschak v. Helina (1993), 89 B.C.L.R. (2d) 320 (S.C.); Wilkinson v. Martin, 2010 BCSC 113.
In the present case, there is no substantive connection between the orders sought and the order for advance payment. The trial was recently adjourned, but that was at the behest of the plaintiff, not the defendant. The application for an order that the fourth action be heard with the other three was not necessary, as the defendants consented to the order before the application was brought. I note as well that the adding of the fourth action did not necessitate the adjournment of the trial.
Further, the application for the finding of liability in one action is not of itself a proper basis for an advance payment order. There is nothing in the circumstances of a formal finding of liability in the one action that would make an order for an advance payment just or necessary in the circumstances of this case. In short, there is simply no substantive trigger for an advance payment.
In addition, with seven of the ten defendants denying liability, I am not persuaded it would be just in the circumstances to order that the defendants in all actions be jointly and severally liable for the advance payment of damages. Whether there ought to be joint and several liability on the part of the defendants is an issue that must be determined at trial and should not be determined on an application for advance payment.
For all of these reasons, and despite the able and forceful submissions of plaintiff’s counsel, the plaintiff has not satisfied me that the orders sought ought to be granted, with the exception of the first order that all four actions be heard together, which will go by consent. The application for the remaining orders is dismissed.
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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.
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