In 2017 the BC Supreme Court awarded a litigant injured in a vehicle collision costs despite receiving a jury verdict far less than a pre-trial settlement offer from ICBC. The court concluded that if the Plaintiff was stripped of costs and ordered to pay ICBC’s costs the result would result in pyrrhic victory inconsistent with the result the jury was looking to achieve.
ICBC appealed arguing they should have been awarded costs. In reasons released today (Bains v. Antle) the BC Court of Appeal dismissed the appeal and found the trial judge properly exercised their discretion in this case. The Court provided the following reasons:
Reasons for judgement were released today demonstrating the Court’s discretion for costs following trial where formal settlement offers were exchanged.
In today’s case (Bains v. Antle) the Plaintiff was injured in a collision and sued for damages. Prior to trial the Defendant presented a formal settlement offer of $185,000. The Court noted that “some of the plaintiff’s initial negotiating positions were clearly inflated” but ultimately it was reasonable for the Plaintiff to refuse the Defendant’s offer and proceed to trial in the face of medical evidence supporting her alleged claim of chronic pain and related disability.
The decision proved costly with a jury awarding the Plaintiff damages of $37,800. The Defendant asked to be awarded post offer costs and to strip the Plaintiff of her post offer costs. The Court refused noting the Plaintiff is of modest means and having her pay Defendant costs would reduce the verdict to a Pyrric victory. In awarding the Plaintiff costs Madam Justice Power provided the following reasons:
 It is my view that all of the financial evidence at trial supports the fact that the plaintiff was a person of modest means. Having already concluded that the settlement offer was not one which ought to have reasonably been accepted, it is evident that an order requiring the plaintiff to either pay the well-funded defendants’ costs, or in the alternative denying the plaintiff her costs, from September 20, 2016 onwards, would result in a pyrrhic victory and could have the effect of discouraging plaintiffs from pursuing valid claims.
 As a result, although not determinative, the relative financial circumstances of the plaintiff and the defendant insurer are a consideration that I have taken into account.
 I am not persuaded that in these circumstances the court should exercise the discretion afforded to it under Rule 9-1(4) and (5). Having considered all of the relevant factors, I find that the plaintiff is entitled to her costs at Scale B and disbursements, including the cost of this application. The defendants’ application is dismissed.
Unpublished reasons for judgement were recently released by the BC Supreme Court, Victoria Registry, dismissing a defence application for an independent medical assessment for being brought too late in the process.
In the recent case (Bains v. Antle) the Plaintiff was injured in a collision and sued for damages. The Defendant requested the Plaintiff to attend a 2 day Functional Capacity Assessment less than 84 days before trial. The Plaintiff refused and a court application to compel attendance was brought. Master Harper dismissed the application finding the Defendant was too late and waited at their peril. In dismissing the application the Court provided the following reasons:
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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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