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BCCA – Obtaining Judgement Below Amount Sought Is Not a Proper Reason to Deprive Costs

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, Uncategorized. 60 Comments on BCCA – Obtaining Judgement Below Amount Sought Is Not a Proper Reason to Deprive Costs

Reasons for judgement were released last week by the BC Court of Appeal confirming that a party who is awarded damages below the amount sought, even if significantly so, is not a reason in and of itself for depriving the party of costs.
In last week’s case (Loft v. Nat) the Plaintiff was injured in a motor vehicle collision and sued for damages.  At trial the Plaintiff sought substantial damages of over $1.8 million.  The Plaintiff’s claims were largely rejected with damages just over $60,000 being awarded.  The trial judge found that the Defendants had been largely successful and ordered that the Plaintiff pay the Defendants costs.  The Court of Appeal found this was plainly an error.  In reaching this conclusion the Court provided the following reasons:
[46]        Pursuant to Rule 14-1(9), costs in a proceeding must be awarded to the successful party unless the court otherwise orders. At its most basic level the successful party is the plaintiff who establishes liability under a cause of action and obtains a remedy, or a defendant who obtains a dismissal of the plaintiff’s case: Service Corporation International (Canada) Ltd. (Graham Funeral Ltd.) v. Nunes-Pottinger Funeral Services & Crematorium Ltd., 2012 BCSC 1588, 42 C.P.C. (7th) 416.
[47]        In this proceeding Mr. Loft was awarded damages for injuries he had suffered in the motor vehicle accident. The respondents had denied liability until shortly before trial. Although the damage award was far less than sought, Mr. Loft was the successful party. The fact that he obtained a judgment in an amount less than the amount sought is not, by itself, a proper reason for depriving him of costs: 3464920 Canada Inc. v. Strother, 2010 BCCA 328, 320 D.L.R. (4th) 637.
[48]        The trial judge’s stated reason for awarding costs to the respondents was that the respondents had been largely successful in all areas of the claim. With respect, that decision is wrong in principle and cannot stand. I note that on the hearing of the appeal the respondents did not suggest otherwise.
[49]        The fact that a party has been successful at trial does not however necessarily mean that the trial judge must award costs in its favour. The rule empowers the court to otherwise order. The court may make a contrary order for many reasons. One example is misconduct in the course of the litigation: Brown v. Lowe, 2002 BCCA 7, 97 B.C.L.R. (3d) 246. Another is a failure to accept an offer to settle under Rule 9-1. A third arises when the court rules against the successful party on one or more issues that took a discrete amount of time at trial. In such a case the judge may award costs in respect to those issues to the other party under Rule 14-1(15): Lee v. Jarvie, 2013 BCCA 515. Such an order is not a regular part of litigation and should be confined to relatively rare cases: Sutherland v. Canada (Attorney General), 2008 BCCA 27, 77 B.C.L.R. (4th) 142; Lewis v. Lehigh Northwest Cement Limited, 2009 BCCA 424, 97 B.C.L.R. (4th) 256. Whether a judge will order otherwise in any particular case will be dependent upon the circumstances of that individual action.
[50]        Costs are very much a matter of the trial judge’s discretion. In the circumstances of this case, the basis upon which that discretion was exercised was in error. That said, the trial judge remains in the best position to determine the proper costs order and to what extent, if any, the offer to settle that was made in this case should impact on costs. On the hearing of the appeal both parties suggested that if the costs appeal was allowed, costs should be referred back to the trial judge.
[51]        I would allow the costs appeal and refer the matter of costs back to the trial judge for a further determination.
 

Previous Similar But Recovered Injuries Are Not Indivisible

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Interesting reasons for judgment were released this week by the BC Supreme Court, Campbell River Registry, addressing whether previous similar but recovered injuries are indivisible for the purpose of damage assessment.  In short the Court held that they are not.
In this week’s case (Lawson v. Kirk) the Plaintiff was injured in a 2010 collision.  The Defendant “ has admitted liability for the accident and -quite refreshingly – has admitted the plaintiff was injured in the accident.”.  The Plaintiff has similar injuries fro a previous collisins although these were recovered prior to the 2010 collision.  In finding such injuries divisible Mr. Justice Johnston provided the following reasons:
[45]         Ms. Lawson has agreed that the injuries she suffered in her 2007 accident were very similar to those suffered in this accident, and that her complaints in late 2009, arising out of the 2007 motor vehicle accident, were very similar to complaints she had in 2012 and 2013, following this accident. That raises the question of divisible or indivisible injuries.
[46]         I conclude that, for the purposes of causation, the injuries from the two accidents are divisible. Although Ms. Lawson had very similar complaints of discomfort arising from the same areas of the neck and back, I accept her evidence that her symptoms from the first accident had resolved by the time of the second accident. From the point of view of damage assessment, I find there was no measurable risk that the injuries caused in the first accident which would have resulted in ongoing losses in any event, so that pre-existing risk need not be taken into account in assessing the damages flowing from this defendant’s negligence. See Moore v. Kyba, 2012 BCCA 361 at para. 43.
[47]         I say that for these reasons:
·       Ms. Lawson was able to do all of the housework while she and Mr. Furnseth lived in Fort St. John from December 2009 to May 2010;
·       In that same period, Ms. Lawson drove the considerable distance between Fort St. John and Campbell River and back again two or three times with no difficulty;
·       When she returned to Campbell River in late May 2010, Ms. Lawson resumed her duties at the bakery, with no difficulty;
·       Ms. Lawson took up the second job at a fitness center in June 2010, again without difficulty;
·       Ms. Lawson participated in a soccer tournament on the Canada Day weekend in 2010 without difficulty.
[48]         I have accepted Ms. Lawson’s evidence that she was able to do the above activities without difficulty. I have discounted Mr. Furnseth’s evidence that, while the two were in Fort St. John, he and Ms. Lawson engaged in activities such as riding off-road vehicles because Ms. Lawson did not testify to those activities.
[49]         The view of the evidence most favourable to the defendant would be that Ms. Lawson’s injuries arising out of this accident acted upon a plaintiff who was perhaps more susceptible to injury as a result of the earlier accident, that is to say, in which Ms. Lawson’s damages should be assessed on the basis that the “thin skull” reasoning as opposed to a “crumbling skull” reasoning.

Late Formal Settlement Offers Still Capable of Triggering Costs Consequences

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9.

Two judgement were released this week by the BC Supreme Court demonstrating that formal settlement offers made late in the litigation process are still capable of triggering costs consequences.
In the first case (Dennis v. Fothergill) the Plaintiff was injured in a motor vehicle collision and sued for damages.   The Defendant made a formal settlement offer for $279,000 days before the start of trial.  Following trial global damages of just over $48,000 were awarded.  The Plaintiff argued that no costs consequences should be triggered, in part, due to the timing of the late formal settlement offer.  Madam Justice Bruce disagreed and awarded the Defendants costs and disbursements from the date of the offer onward and stripped the Plaintiff of her costs and disbursements of the trial.  In addressing the timing of the offer the Court provided the following reasons:
[30]         The plaintiff had three days to consider the offer and, while her counsel was out of town at the time the offer was served, she had an opportunity to speak with him by telephone prior to its expiry. The offer was straightforward and did not involve complicated calculations that would have required further time to consider and evaluate. Counsel deposes that the plaintiff’s alcohol consumption was interfering with his ability to obtain instructions from her at the time of the offer; however, the plaintiff’s mental health or state of sobriety was not of such a serious nature that it led counsel to apply for an adjournment of the trial that began within days of the offer. At no time was the Court advised that the plaintiff was unable to testify or appear for her trial due to mental health concerns.
[31]         I find the terms of the offer were clear and unambiguous. The amount of Part 7 benefits and the possible income tax holdback was nominal compared to the amount of the defendant’s offer to settle. The offer was also expressed to be “new money”, which meant in addition to Part 7 benefits paid to the plaintiff in advance of trial. The offer of settlement was clearly not a “nuisance offer” that could be easily dismissed by the plaintiff.
[32]         For these reasons, I find the plaintiff ought reasonably to have accepted the offer of settlement.
In the second case (Brewster v. Li) the Plaintiff was injured in a 2008 collision.   The parties exchanged a series of formal settlement offers, the most relevant of which being a defence offer of $450,000 made 4 days prior to trial.  At trial the Plaintiff sought damages of approximately $1,750,000.  Much of the sought damages were not awarded with a judgement of just over $418,000.
The Plaintiff argued that no costs consequences should accrue.  Mr. Justice Voith disagreed and stripped the Plaintiff of post offer costs and disbursements.  In addressing timing of the offer the Court provided the following reasons:
[25]         The timing of the Last Offer is also relevant. There is no requirement in Rule 9–1, as there was in earlier Rules, that an offer be made within a specific time from the start of trial. In several cases judges have used seven days as a reasonable time to consider an offer; see for example Bailey at para. 39; McIsaac v. Healthy Body Services Inc., 2010 BCSC 1033 at para. 87; Gonzales at para. 51.
[26]         It is clear, however, that this issue is largely driven and governed by context. In Bennett, where the defendant made an offer that was open for two days, Madam Justice Dardi succinctly said:
[34]      Mr. Bennett submits that the Second Offer should be given no force and effect because it was received “some two clear working days before the commencement of the trial.” Rule 37B does not contain the same seven-day notice provision as its predecessor. No inflexible “seven-day” rule is imposed by the Rules; rather every case must be judged on its own facts: Dodge v. Shaw Cablesystems Ltd., 2009 BCSC 1765. The proper issue for consideration is whether, in all the circumstances, the offeree had a reasonable opportunity to consider the offer: Uppal v. Rawlins, 2010 BCSC 11.
[35]      The Second Offer was made shortly before trial. The impact of the lateness of the offer was tempered by Mr. Bennett’s awareness of the settlement negotiations that had previously occurred between counsel. Given Mr. Bennett’s personal knowledge of the material facts as referred to above and his representations to the CRA in April 2005 that he had no interest in the Property, I find that neither the timing of the offer nor the late disclosure of the income tax information negatively impacted his ability to meaningfully evaluate the Second Offer. In all the circumstances, I find that as of November 19, 2008, Mr. Bennett was in a position to reasonably evaluate the Second Offer, that the two days were reasonably sufficient time for him to do so, and that he should have accepted the Second Offer.
[27]         In Enviro West, Madam Justice Boyd considered that an offer which was only open for less than two days provided the plaintiff with adequate time to properly consider the offer. She was influenced both by the fact that the defendants had made an earlier offer that “was not far different” from its last offer and by the fact that the plaintiff was “a sophisticated litigant” (at para. 55).
[28]         In Uppal v. Rawlins, 2010 BCSC 11, Mr. Justice Grauer dealt with an offer that was open for 51 hours and said:
[20]      In this case, although the offer was open for only a relatively short period of time, it was presented just before trial, when all discovery of documents and examinations for discovery had been completed, and when the issues had been fully aired in a Rule 18A application for judgment brought by the defendants. That application was dismissed because the chambers judge found that the case was not suitable for determination by summary trial given the credibility issues. Nevertheless, the position of the defendants was made abundantly clear to the plaintiffs. There would be no surprises at trial. Moreover, the perjury and forgery of the plaintiff Navjeet Uppal had been exposed, and the defendants had obtained admissions on discovery that had seriously imperiled the plaintiffs’ case.
[21]      In all of these circumstances, I have no hesitation in concluding that the offer was one that ought reasonably to have been accepted within the 51 hours or so during which it was open for acceptance. Had the plaintiffs accepted it, they would have saved $26,000 that they will now lose, they would have received $40,000 that they will not now get, they would have saved the time and expense of many days of trial, and they would have avoided all their additional liability for costs.
[29]         Finally, in Wright v. Hohenacker, 2009 BCSC 996, Madam Justice Fisher considered that four days was a reasonable time to weigh an offer in circumstances where the parties “were exchanging offers for a week before” (para. 17).
[30]         In this case counsel for Ms. Brewster emphasized the plaintiff’s emotional frailty. He argued, and she deposed, that she had only been examined for discovery a week or so before the Final Offer was made, that that process had been upsetting to her and further that when she received the Last Offer she felt “doubtful, angry and bullied”.
[31]         Though Ms. Brewster may have felt these things, there was no objective reason to feel bullied. Similarly, the fact that her examination for discovery only took place shortly before the trial does not appear to have been through any fault of the defendant.
[32]         Having said this I do accept that receiving two different offers, which replaced an earlier offer, in close succession and without any explanation, late on the Friday before the week in which the trial started, had the prospect to confuse and be more difficult to deal with. I further accept, having seen Ms. Brewster give evidence, that she would have been somewhat fragile emotionally on the eve of trial.
[33]         Accordingly, different aspects of the considerations raised by Rule 9–1(6)(a) favors each of the parties. On balance, therefore, this consideration is neutral…
[39]         I return to where I started. The dominant object that animates Rules 9–1(5)–(6) is the promotion of reasonable settlements. The plaintiff’s position, that she be awarded the costs of the trial notwithstanding the Last Offer, completely ignores this object.
[40]         I consider that a result which properly gives effect to Rule 9-1(4) and which properly reflects the additional considerations that I have identified, would be to deprive the plaintiff of all of her costs, including all disbursements, after February 11, 2013. This result accords with the result arrived at by the court, for example, in each of Tompkins at paras. 28-31 and Wafler at para. 41.

BC Court of Appeal Discusses Duties of Motorists and Pedestrians in a Parking Lot

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Reasons for judgement were released today by the BC Court of Appeal addressing the legal duties of both motorists and pedestrians while in a parking lot.
In today’s case (Russell v. Parks) the Plaintiff pedestrian was walking in a parking lot and was “about 6 feet into a a marked parking stall” when the Defendant backed his vehicle into the same stall and struck the Plaintiff.  At trial the the Court found the pedestrian was 2/3 at fault for the incident.  In overturning this to a 25/75 split in the pedestrians favour the BC Court of Appeal provided the following reasons addressing the parties duties:
[16]         In my respectful opinion, the trial judge erred in law by applying s. 179(2), rather than ss. 180 and 181, to the circumstances of this case. Madam Justice Rowles’ analysis in Loewen v. Bernardi, and the wording of s. 179, when viewed as a whole, describe a code of conduct for vehicles and pedestrians who are approaching or entering a crosswalk. Where, as in this case, there are no crosswalks, ss. 180 and 181 are more appropriate. Section 180 imposes a duty on the pedestrian to yield the right of way to a vehicle when crossing a highway at a point not in a crosswalk. Under the Motor Vehicle Act, a parking lot falls within the definition of “highway”. Mr. Russell was crossing through a parking lot and it is clear that he was not using a crosswalk, therefore s. 180 applies. Section 181 imposes a corresponding duty on a driver “to exercise due care to avoid colliding with a pedestrian on a highway.”  The standard of “due care” will obviously be higher in a parking lot than, for example, on a freeway, because one can expect pedestrians to be using that space. This approach is consistent with Bohati v. Jewell (1996) 84 B.C.A.C. 161, another “parking lot” case, where this court relied on what are now ss. 180 and 181 to apportion liability. Sections 180 and 181, rather than s. 179(2), have also been relied upon in lower court decisions involving parking lots: see Gray v. Ellis, 2006 BCSC 1808, and Davidson v. Donnelly, [1996] B.C.J. No. 800 (S.C.).
[17]         Even if Mr. Russell did leave a place of safety, the trial judge erred in his interpretation of s. 179(2) by considering only part of it. This provision has two components: a pedestrian must leave a place of safetyand this must be done so suddenly that it is “impracticable for the driver to yield the right of way.” The trial judge’s findings clearly indicate it was not impracticable for Mr. Parks to yield the right of way. He found that Mr. Parks could have stopped and avoided the accident had he been keeping a proper lookout (para. 34). In my view, s. 179(2) contemplates a situation where the pedestrian steps onto a path designated for pedestrians (such as a crosswalk) but in doing so steps immediately into the path of a moving vehicle that could not practicably yield the right of way in time. According to the trial judge’s findings, this does not describe the situation in which Mr. Russell and Mr. Parks found themselves.
[18]         Mr. Russell argues that if he was not in violation of the statutory obligation pursuant to s. 179(2), he is not contributorily liable. I would not disturb the trial judge’s finding that he breached his common law (and statutory) duty to exercise due care and that this contributed to his injuries. The trial judge found that Mr. Russell was looking down as he walked into the parking stall, and as a result, failed to take reasonable care for his own safety. There is no basis on which to interfere with this conclusion.
[19]         The next question is whether the apportionment of liability was grossly disproportionate to what this court would have ordered (see Moses, supra, para. 33). Each assessment will turn on the facts of the case. In this instance, Mr. Russell was looking down as he stepped over the barrier, and continued to look down as he took a few steps into the parking stall. Mr. Parks was aware that there were pedestrians in the area, entered the lot from a direction that required him to swing wide to enter a parking stall, changed his mind at the last minute in terms of which stall he would take, shoulder checked numerous times, and ended up driving forward when he was looking backward, striking Mr. Russell. Clearly both were at fault. However, finding that Mr. Russell was two-thirds responsible for the accident, in my respectful view, is grossly disproportionate to his fault. The trial judge was clearly influenced by the finding that Mr. Russell had breached his statutory duty under s. 179(2) of the Motor Vehicle Act by leaving a “place of safety”. As I have explained above, this finding was in error. Although Mr. Russell was looking down as he walked, he did not step off a curb or shoulder into moving traffic (which is what s. 179(2) is designed to prevent) and his fault should not be assessed as if he did.
[20]         In Loewen v. Bernardi, this court reduced a finding of liability against the pedestrian plaintiff from 25% to 10% on the basis that the plaintiff’s contribution was minor. In that case, the plaintiff was half-way through a marked crosswalk when he was struck by a vehicle. I would not characterize Mr. Russell’s degree of fault as “minor”. On the other hand, it was not the main cause of the accident. The main cause was the fact that Mr. Parks drove forward while he was looking backward. I would allow the appeal on this ground and apportion liability on the basis of 75% against Mr. Parks and 25% against Mr. Russell.
 

Post Crash Engine Failure Found To Be Protected Under ICBC's Collision Coverage

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(Update March 17, 2015 – the below decision was largely upheld by the BC Court of Appeal in reasons for judgement released today)
Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, addressing the scope of ICBC’s collision coverage when a vehicle has mechanical issues following a crash.
In today’s case (Dhadwal v. ICBC) the Plaintiff leased a high end Mercedes valued at $120,000.  He purchased optional collision coverage with ICBC.  The vehicle was driven into a ditch and suffered modest damage which appeared to be cosmetic in nature.   The vehicle appeared intact and was driven home.  The next day, while driving to a repair shop, the engine seized resulting in over $82,000 of needed repair costs.  ICBC refused to cover these arguing it was a mechanical issue unrelated to the collision, or in the alternative, it was unreasonable for the Plaintiff to drive following the crash.  In rejecting both of these arguments and requiring ICBC to pay damages Madam Justice Warren provided the following comments:
[63]         In my view, it is clear from the Hall Report that neither of the two sources of causation, the collision and the subsequent driving, would alone have resulted in the engine failure. It was the combination that caused the damage. Neither was dominant, since the engine damage would not have occurred but for both causes.
[64]         Where there are concurrent causes of a loss for which an insurance claim is advanced, there is no presumption that the coverage is ousted if one of the concurrent causes is an excluded peril. An insurer may oust coverage where one of the concurrent causes is covered and another excluded, but only by express language in the policy to that effect. Whether an exclusion clause applies in a particular case of concurrent causes is a matter of interpretation: Derksen v. 539938 Ontario Ltd., 2001 SCC 72, at paras. 48-49; Chandra v. Canadian Northern Shield Insurance Co., 2006 BCSC 715, at paras. 27, 50.
[65]         For the foregoing reasons, I find that all the damage to the Mercedes, including the engine damage, is damage “caused by … collision of a vehicle with another object … including a … culvert” and, as such, falls within the definition of “collision coverage” in the Optional Policy. Whether the coverage for the engine damage is nevertheless ousted depends upon the construction and application of the exclusion in s. 5.9(a) of the Optional Policy and Prescribed Conditions 5(3) and (4)…
[104]     It is my view that the mechanical breakdown in this case, i.e. the engine damage, was coincidental with the damage that occurred on June 7, 2012, because the two losses corresponded in substance, nature, character, and time. Specifically, the two losses arose from the same incident (i.e. the collision) and were part of the same chain of causation. The collision resulted in immediate body damage and damage to internal components of the Mercedes (specifically, the oil cooler, the oil cooler hoses, the radiator hoses, the radiator outlet tank, and the connection), which in turn caused coolant and engine oil to be lost, and, in combination with the driving after the accident, resulted in the seizure of the engine. In these circumstances I find that the two losses were closely similar, or in other words corresponded in, substance, nature, character, and time.
[105]     I conclude that the exception to the exclusion in s. 5.9(a) applies to the engine damage incurred in this case, as the engine damage was “coincidental with” the damage that occurred immediately upon impact, and the latter was damage for which indemnity was provided under the collision coverage of the Optional Policy…
[126]     Driving a vehicle that has sustained apparently minor damage in a collision to the owner’s home, and then to a repair shop, rather than having it towed, is a common and everyday occurrence. The evidence satisfies me that the observable body damage to the Mercedes was minimal and consistent with a low-impact collision, and that there were no signs of leaking fluids prior to the engine shutting down. I am also satisfied that it is more likely than not that no warning lights were illuminated to indicate low fluids or that the engine should be checked.
[127]     There is no evidence upon which I could conclude that Mr. Dhadwal or his family members did something a reasonably prudent person would not have done, or failed to do something a reasonably prudent person would have done. In particular, there is no evidence from which I could conclude that Mr. Dhadwal or his family members should have known, at any time prior to the moment before the engine shut down, that the fluids had been lost from the collision damaged components…
 

Loans From Your Mother "Are Not Special Damages"

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Update February 3, 2015 – the below judgement was successfully appealed and remitted for a new trial.  The appeal was based on grounds other than the below excerpt.
________________________________
Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, confirming that the principle sum borrowed when in need following collision related injuries is not a recoverable special damage.
In this week’s case (Healey v. Chung) the Plaintiff was injured in a 2005 pedestrian/vehicle collision.  The Plaintiff claimed it was a ‘catastrophic accident’ and sought damages between $485,000 and $1,037,000.  The Court noted considerable credibility concerns with the Plaintiff’s evidence and rejected much of his claim.  Included in the rejected damages were funds sought due to loans from family members.  In rejecting this portion of the claim Mr. Justice Ball provided the following reasons:
[184]     Monies Mr. Healey borrowed from his mother or others are not “special damages”. Mr. Healey testified that he did not recall the use to which the borrowed monies were put. Mrs. Healey testified that the borrowed money was used to pay household expenses including rent. Consequently, no evidence before the Court demonstrates that borrowed monies were used in any way, for instance, for therapy for injuries the accident caused that somehow would relate the borrowing to the accident.
[185]     Second, only interest paid on borrowed money would be a “special damage.” And absolutely no evidence before this Court demonstrates that any interest was agreed or paid in relation to the claimed loans. Consequently: no amount is allowed for the borrowed monies: Choma v. Canadian Vehicle Leasing Limited, [1982] B.C.J. No. 1036 (S.C.) and Wong v. Hemmings, 2012 BCSC 907.
 

Doubling Up On Rule 15 Costs

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When two Rule 15 claims are joined for the purposes of trial the Court has discretion with respect to the costs parties are entitled to.  Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, addressing this and awarding the Plaintiff two sets of costs.
In today’s case (Harvey v. Tooshley) “by order of the court, the trials in these actions were to be heard at the same time. The two actions were settled for a global figure about four days before the commencement of trial.”.  The parties could not agree on costs with ICBC arguing “ there ought to be a reduction in the fees claimed in each action to reflect the savings and efficiencies achieved by having these matters joined for the purposes of trial.”.  Master Bouck disagreed and ordered that the Plaintiff receive two sets of costs.  In reaching this conclusion the Court provided the following reasons:
30]         It is now well established that the registrar has some discretion to reduce the lump sum fee portion of costs allowed under Rule 15-1 if the action is settled before trial. That discretion is said to be a “rough and ready” exercise and allows the registrar to consider the steps been taken to the date of settlement. Nevertheless, the registrar is not expected to parse out those steps as if the tariff to Appendix B applies.
[31]         The approach by assessing officers has been to make some reduction for the costs that might be attributed to attendance at trial and allow the balance as so-called preparation costs. Assessing officers have allowed $6,500 for these preparation costs, whether the matter settled three months before or on the eve of trial. The court has endorsed this approach: Christen v. McKenzie, 2013 BCSC 1317.
[32]         Moreover, this approach is consistent with the purpose of Rule 15-1 which is to provide a simplified and streamlined litigation process, including the costs assessment process.
[33]         The plaintiff is entitled to two sets of costs, regardless of the efficiencies accomplished by joining these actions for trial: Peacock v. Battel, 2013 BCSC 1902.
[34]         I allow the sum of $6,500 in fees for each action.

ICBC Advance Payment Does Not Have "Any Bearing" on Costs Order

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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:
[14]         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.
..
[49]         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.
 

BC Court of Appeal Discusses Discretionary Costs in Face of Formal Settlement Offers

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Reasons for judgement were released this week by the BC Court of Appeal addressing the current landscape of judicial discretion when awarding costs in cases with formal settlement offers in play.
In this week’s case (Wafler v. Trinh) the Plaintiff was injured in a 2005 collision.  Prior to trial ICBC made three formal settlement offers, the final being $222,346.  The Plaintiff rejected this offer and proceeded to trial.  A jury assessed damages at $70,000 and after appropriate deductions this resulted in judgement of over $53,000.  ICBC applied for post offer costs.  Mr. Justice Voith did not agree that such a result was appropriate but did strip the Plaintiff of post offer costs and disbursements.  Given that the trial lasted 10 days this is a significant financial consequence.
ICBC appealed arguing “the purpose of the appeal on costs was to reverse what he described as a trend in the trial court wherein plaintiffs who succeed in “beating” an offer to settle are routinely awarded double costs but defendants who have made an offer to settle that was rejected but well within the claim value are deprived an order of costs. The defendant says this is unjust. In other words, the defendant submits there should be significant consequences to plaintiffs who fail to accept a reasonable offer.”
The BC Court of Appeal dismissed the appeal finding the trial judge fairly exercised his discretion.  In reaching this conclusion the Court provided the following reasons:
[79]         Pursuant to Rule 14-1(9) of the Supreme Court Rules, Mr. Wafler, as the successful party, is entitled to his costs unless the court orders otherwise. Pursuant to Rule 9-1(4), the court may consider an offer to settle when exercising its discretion in relation to costs. Rule 9-1(5) enumerates the orders the court may make. In making an order under subrule (5), the court may consider the factors listed in subrule (6).
[80]         The purpose for which costs rules exist, as stated in Giles v. Westminster Savings and Credit Union, 2010 BCCA 282, was referred to by the trial judge at para. 18 of his reasons (reproduced at para. 50 above).
[81]         I do not quarrel with the general proposition that a plaintiff who rejects a reasonable offer to settle should usually face some sanction in costs, even in circumstances in which it cannot be said that the plaintiff should have accepted the offer. To do otherwise would undermine the importance of certainty and consequences in applying the Rule. The importance of those principles was emphasized by this court in Evans v. Jensen, 2011 BCCA 279:
[41]      This conclusion is consistent with the importance the Legislature has placed on the role of settlement offers in encouraging the determination of disputes in a cost-efficient and expeditious manner. It has placed a premium on certainty of result as a key factor which parties consider in determining whether to make or accept an offer to settle. If the parties know in advance the consequences of their decision to make or accept an offer, whether by way of reward or punishment, they are in a better position to make a reasoned decision. If they think they may be excused from the otherwise punitive effect of a costs rule in relation to an offer to settle, they will be more inclined to take their chances in refusing to accept an offer. If they know they will have to live with the consequences set forth in the Rule, they are more likely to avoid the risk.
[82]         That said, under the present Rule, unlike its predecessor which mandated the result, it is for the trial judge to determine in any particular case the nature and scope of whatever sanctions are to be applied. The permissive wording in Rules 9-1(5) and (6) indicates the legislature intended to preserve the historically discretionary nature of costs awards, including an award of costs where an offer to settle has been made.
[83]         In my opinion, the judge adequately considered the factors under Rule 9-1(6) which were relevant in this case. Most significantly, the defendant’s contention that the plaintiff in this case did not suffer any consequences from his failure to accept the offers to settle ignores the fact that, as a successful party, he was deprived of his costs and disbursements from December 21, 2011, approximately six weeks before the jury’s verdict made on February 3, 2012. The verdict followed a ten day trial. Thus, the impact of the judge’s costs order was to deprive Mr. Wafler of taxable costs for the preparation of and attendance at a ten day trial, together with disbursements incurred after the offer, which presumably included fees for attendance by experts.
[84]         In these circumstances, I do not think it can be fairly said that the plaintiff in this case was not penalized for his failure to accept the defendant’s offer. In my view, the costs order reflected the underlying purpose of Rule 9-1.
[85]         In the result, I would dismiss the cross-appeal.
 

"Condom Sabotage" Is Fraud Taking Away Consent to Sexual Contact

Written by admin on . Posted in Sexual Assault Civil Cases. 104 Comments on "Condom Sabotage" Is Fraud Taking Away Consent to Sexual Contact

Fraud vitiates consent to sexual contact exposing the fraudulent party to criminal and civil prosecution.  The Supreme Court of Canada addressed this today in a case involving ‘condom sabotage’.
In today’s case (R v. Hutchinson) the complainant “agreed to sexual activity with her partner, H, insisting that he use a condom in order to prevent conception.  Unknown to her, H had poked holes in the condom and the complainant became pregnant.”.  This led to conviction for aggravated sexual assault.
In upholding the conviction and discussing when fraud vitiates consent the Supreme Court of Canada reasoned as follows:
[4]                              The Criminal Code sets out a two-step process for analyzing consent to sexual activity. The first step is to determine whether the evidence establishes that there was no “voluntary agreement of the complainant to engage in the sexual activity in question” under s. 273.1(1). If the complainant consented, or her conduct raises a reasonable doubt about the lack of consent, the second step is to consider whether there are any circumstances that may vitiate her apparent consent. Section 265(3) defines a series of conditions under which the law deems an absence of consent, notwithstanding the complainant’s ostensible consent or participation: Ewanchuk, at para. 36. Section 273.1(2) also lists conditions under which no consent is obtained. For example, no consent is obtained in circumstances of coercion (s. 265(3)(a) and (b)), fraud (s. 265(3)(c)), or abuse of trust or authority (ss. 265(3)(d) and 273.1(2)(c)). 
[5]                              We conclude that the first step requires proof that the complainant did not voluntarily agree to the touching, its sexual nature, or the identity of the partner.   Mistakes on the complainant’s part (however caused) in relation to other matters, such as whether the partner is using effective birth control or has a sexually transmitted disease, are not relevant at this stage. However, mistakes resulting from deceptions in relation to other matters may negate consent at the second stage of the analysis, under the fraud provision in s. 265(3)(c) of the Criminal Code.
[6]                              Applying this template to the facts in this case leads us to conclude that, at the first step, the complainant voluntarily agreed to the sexual activity in question at the time that it occurred.  The question is whether that consent was vitiated because she had been deceived as to the condition of the condom.  This question is addressed at the second step.  The accused’s condom sabotage constituted fraud within s. 265(3)(c), with the result that no consent was obtained.  We would therefore affirm the conviction and dismiss the appeal.