Tag: costs

Plaintiff Stripped of Partial Costs For Trial Judgment Below Advance Payments

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry addressing a somewhat unique fact pattern of what costs consequences should be after trial where a Plaintiff was awarded damages below the amount of money they received prior to trial by way of advances paid by the Defendants.

In today’s case (Singh v. Chand) the Plaintiff sued for damages as a result of two collisions.  The claim for the second collision was dismissed.  The Defendants for the first crash admitted liability.  Prior to trial they advanced the Plaintiff $250,000.   They agreed that they would not seek repayment regardless of the outcome of the trial.   At trial the Plaintiff’s damages were assessed below this amount with $137,288 being awarded.

The Court found that in these circumstances the Plaintiff should recover costs to the date of the advance payment and the Defendants entitled to their costs from that date onward.  In reaching this decision Madam Justice Watchuk provided the following reasons:

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Late Offer to “Emotionally and Mentally Fragile” Plaintiff Fails To Trigger Costs Consequences

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, declining to award a Defendant trial costs despite the Plaintiff receiving judgement for less than their pre trial settlement offers.

In today’s case (Wiseman v. Wang) the Plaintiff was injured in a collision and sued for damages.  Prior to a February 19, 2019 trial the Defendant made two formal settlement offers.  On June 13, 2018 the Defendant offered to settle the plaintiff’s claims for $100,000 new money plus costs and was open for acceptance until 4:00 pm on the last business day prior to the commencement of trial.  A second offer was delivered on February 13, 2019 and offered to settle the plaintiff’s claims for $150,000 new money plus costs. It was also open for acceptance until 4:00 pm on the last business day before the commencement of trial.

At trial the Plaintiff’s damages were assessed at $79,000.  The Court noted that trial “could have resulted in a much higher award” but reliability problems with the Plaintiff’s own evidence prevented a more favourable result.

The Defendant sought trial costs in these circumstances but the Court declined.  In dismissing the defence application the Court noted that the Plaintiff was ‘emotionally and mentally fragile‘ and the timing of the second offer made it such that costs consequences should not be triggered.  Mr. Justice Davies provided the following reasons:

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BC Court of Appeal Upholds Costs Awards To Plaintiff To Avoid “Pyrrhic Victory”

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:

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ICBC Hit With Double Costs Due To Inadequate Settlement Efforts

Reasons for judgement were published today ordering double costs to a plaintiff who was awarded damages substantially above his settlement request following a vehicle injury.

In today’s case (Godbout v. Notter) the Plaintiff was injured in a a vehicle collision that the Defendant was at fault for.  Following an unsuccessful mediation the Plaintiff provided a formal offer to settle his claim for $300,000.  ICBC refused and offered 1/3 of this. At trial the Plaintiff was awarded damages totalling $583,199.36 for non-pecuniary loss, past wage loss, future lost earnings, future care costs, loss of housekeeping capacity and special damages.

The Plaintiff was then awarded double costs for ICBC’s unreasonable refusal to accept the Plaintiff’s settlement offer.  In finding double costs were warranted Mr. Justice Jenkins provided the following reasons:

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ICBC Ordered to Pay $33,264 in Costs For Unreasonable Refusal to Settle Injury Claim

Although the recent ICBC and BC Government narrative attempts to paint injury claimants in an unreasonable light in reality ICBC often refuses reasonable settlement offers only to be ordered to pay far more at trial.  Reasons for judgement were published today by the BC Supreme Court, Vernon Registry, demonstrating such a result.
In the recent case (Moreira v. Crichton) the Plaintiff was injured in a 2013 collision.  The Defendant admitted fault.  The crash resulted in chronic pain with a poor prognosis.  This in turn resulted in real disability and significant past and future medical costs and wage loss.  The Plaintiff made a formal settlement offer of $480,000.  ICBC refused to pay and the matter proceeded to trial where the Plaintiff’s claim was valued over $800,000.  ICBC was ordered to pay double costs for refusing the Plaintiff’s reasonable settlement efforts.
Today the Court assessed these costs at $33,264 and ordered that ICBC pay this over and above the value of the claim.  Unreasonable positions by litigants have consequences.  Here ICBC was ordered to pay a substantial penalty for refusing to treat the plaintiff fairly.  In reaching this assessment of costs Master McDiarmid provided the following reasons:

[1]             This is an assessment of costs following a trial before Mr. Justice Betton. The trial was heard in late January and early February 2018; Betton J.’s Reasons for Judgment were rendered on July 31, 2018 cited at Moreira v. Crichton, 2018 BCSC 1281. The total judgment was $804,914.48.

[2]             The plaintiff had offered to settle for $480,000.00 by way of a formal offer to settle on May 23, 2017. In a subsequent hearing in front of Betton J. on December 18, 2018, he ordered that the plaintiff was entitled to costs, including double costs after May 23, 2017…

[94]         That totals 270 units at $110.00 per unit for a subtotal of $29,700.00, plus 7% PST of $2,079.00 and 5% GST of $1,485.00 for a total of tariff item costs, inclusive of taxes, of $33,264.00. The disbursements on a Bill of Costs should reflect my decision, together with the effect of my decision on applicable taxes on disbursements.

[95]         The disbursements on that Bill of Costs should reflect my decision, together with the effect of my decision on applicable taxes.

[96]         If required, plaintiff’s counsel may submit to me a revised Bill of Costs and certificate, in accordance with these reasons.

"It is Unusual For a Trial Judge to Award Costs to an Unsuccessful Plaintiff"

Interesting reasons for judgement were released today by the BC Court of Appeal upholding a trial judges award of costs in favour of a plaintiff who had their lawsuit dismissed.
In today’s case (Tisalona v. Easton) the Plaintiff sued for damages as a result of injuries sustained in two collisions.  The Plaintiff was awarded damages for the first crash though less than what she requested and also less than the Defendant’s pre trial offer to settle.  The claim for damages from the second collision was dismissed.  Despite this the Court awarded the Plaintiff costs for both actions which were tried together.  In upholding this result the BC Court of Appeal provided the following reasons:

[75]         In the case of the 2011 action, the only issue at trial was whether the 2011 Accident had aggravated or prolonged the effects of the 2008 Accident. The trial judge concluded that it had not, but that it had been reasonable to deal with the two accidents together.

[76]         The trial judge went on to estimate that approximately one hour of trial time was devoted to evidence concerning the second accident.  None of the expert reports had addressed the 2011 Accident to any extent.

[77]         It is unusual for a trial judge to award costs to an unsuccessful plaintiff. Here the principal considerations were the de minimus nature of the additional time required to deal with the 2011 action at trial and the trial judge’s conclusion that it had been reasonable to join this claim with the more substantial action in relation to the 2008 Accident.

[78]         In my view these considerations are not arbitrary, but rather were connected to the case before the trial judge. They fall within the broad discretion afforded to trial judges following the elimination of the qualification “for good cause” from our rules. Accordingly, I would not give effect to this ground of appeal.

"Legitimate Cause for Concern" When Defendant Offer Fails To Include Full Costs and Disbursements

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, depriving a Defendant of double costs that they otherwise would have been awarded where their formal settlement offers failed to include separate costs and disbursements.
In today’s case (Lanz v. Silver Lady Limousine Services Ltd.) the Plaintiff was involved in two separate collisions and sued for damages.  A jury dismissed both lawsuits.
Prior to trial ICBC provided a formal settlement offer of $50,000 and 50% of costs and disbursements.  This was later withdrawn and replaced with a settlement offer of $70,000 inclusive of costs and disbursements and finally one of $80,000’new money’.  The Plaintiff rejected all of these offers.
The Plaintiff conceded the Defendants were entitled to costs for being on the winning end of the lawsuit but argued no double costs should be awarded as the offers ought not to have reasonably been accepted.  In depriving the Defendant of double costs Madam Justice Sharma expressed concern about the Defendant’s reluctance to include full costs in their offers and noted as follows:

[22]         The defendants first offered $50,000 plus only 50% of costs; their last offer was $80,000 “new money” inclusive of costs and disbursements. In my view, there is a legitimate cause for concern when a defendant’s offer does not include costs and disbursements in a personal injury case where liability and damages are at issue. It could be seen as a tactic discouraging the plaintiff from gathering evidence to substantiate her claim in the first place. Plaintiffs carry the evidentiary burden to prove their case and they are obliged to bring forward expert medical evidence. In this case, the defendant’s offer was made more than a year after the plaintiff’s original offer, when presumably significant costs may already have been incurred with no indication from the defendants that settlement was a possibility.

[23]         In the context of this case, I do not find the defendants’ offers to be ones the plaintiff ought to have accepted because they did not include costs and disbursements as discrete items. I see nothing about this case that justifies penalizing the plaintiff for failing to correctly guess the jury would not accept her claims. I conclude that awarding double costs amount to imposing a heavy penalty on a plaintiff that was forced to endure the unpredictability of a jury trial. I find the day before trial, she had reasonable basis to pursue her case at trial. The defendants’ offers were devoid of discrete recognition of costs and, in my view, that was a disincentive to settle.

[24]         The defendants’ application for double costs is dismissed

Scale C Costs Awarded Following Injury Prosecution "Of More Than Ordinary Difficulty"

Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, illustrating circumstances when increased “scale c” costs are appropriate.
In the recent case (Wallman v. Doe) the Plaintiff suffered a disabling brain injury following a motor vehicle collision and was awarded damages following a lengthy trial.  The Plaintiff was awarded costs on Scale C and in finding this increased scale was appropriate Mr. Justice Weatherill provided the following reasons:
6]             By any measure, this was a complex case that, although courteously and cooperatively fought, was nevertheless hard fought with little, if anything, conceded. The defendants’ position throughout was that the plaintiff’s alleged brain injury was not real. The trial occupied 29 days. Forty‑three witnesses were called by the parties, including 16 engineering and medical experts. Sixteen expert reports were exchanged.
[7]             The engineering experts provided opinions regarding the biomechanics of and the acceleration and other forces imparted upon a human body during a rear‑end collision, mechanical engineering, accident reconstruction, and Monte Carlo simulations to predict the probability of various accident scenarios.
[8]             The medical expert evidence included opinions of psychiatrists, psychologists, neurologists, a neuro‑opthalmologist, physiatrist and a speech pathologist.
[9]             In addition, there was expert evidence from occupational therapists, rehabilitation and vocational consultants, and economists.
[10]         The defendants conducted several pre‑trial examinations of nine witnesses, conducted two and a half days of examinations for discovery of the plaintiff, during which he was asked 2,669 questions. Considerable steps were taken by the parties in an effort to prove or disprove the plaintiff’s claim that he had suffered a mild traumatic brain injury during the accident. Most, if not all, of the expert evidence was focused on whether the plaintiff sustained a mild traumatic brain injury as a result of a relatively minor rear‑end impact during the accident.
[11]         In addition, there were several pre‑trial applications, most of which were of ordinary difficulty, but one involved the plaintiff’s successful motion to strike the defendants’ jury notice on the basis that the case had become complex and would be too lengthy for a jury to retain the evidence. This application was the subject of two hearings in the Court of Appeal.
[12]         In my view, this action was plainly one of more‑than‑ordinary difficulty. The plaintiff is entitled to an award of costs at Scale C.
 

ICBC's Refusal To Negotiate Without Litigation Triggers Costs Award

Reasons for judgement were released last week by the BC Court of Appeal ordering ICBC to pay costs after the settlement of a matter following trial.
In last week’s case (Krohn v. Weidner) the Plaintiff was injured in a collision and sued for damages.  Following trial the Plaintiff ” immediately identified some areas of concern” and tried discussing these with ICBC.  ICBC refused to address these issues stating that “no discussions concerning the amount of the judgment without an appeal first being filed.
The Plaintiff appealed and the parties eventually settled the outstanding issues.  The Plaintiff sought costs but ICBC refused to agree to these arguing each party should bear their own costs of the appeal.  The BC Court of Appeal ultimately ordered that ICBC bear the costs of the appeal and in reaching this conclusion provided the following reasons:
[5]           The appellant seeks costs of the appeal. The respondent, on the costs question, says that this is a case for an order that each party bear their own costs, consistent with Olney v. Rainville, 2010 BCCA 155, because this is a case, says the respondent, of divided success.
[6]           From what we have been told, it is apparent that the only route for the appellant to recovery of the undisputed disbursements as special damages was by pursuing this appeal. Accordingly, in our view, this is not a case that justifies departing from this Court’s usual rule that the party successful on an appeal recover his or her costs.

When Does An Award of $20,000 = A Significant Debt

No, this is not a trick question.  When can a judge awarding you $20,000 leave you in ‘significant’ debt?  The answer is when you fail to beat a formal offer at trial and have ‘loser pays’ costs assessed you.  I’ve discussed this reality previously and it was demonstrated yet again in reasons for judgement released last week by the BC Supreme Court, Vancouver Registry.
In last week’s case (Gonzales v. Voskakis) the Plaintiff was injured in a 2008 collison.  Prior to trial ICBC provided a formal settlement offer of $69,000.  The Plaintiff rejected this and proceeded to have a 12 day trial where she sought in excess of $385,000.  The claim was largely unsuccessful with the trial judge awarding just over $20,000 in damages.  ICBC asked that the Plaintiff be stripped of post offer costs and that the Defendant be awarded post offer costs and disbrsements.  The Plaintiff argued that such a result would “negate her entire judgement and leave her significantly in debt“.   Madam Justice Fitzpatrick noted that the underlying “behaviour modification objective” of the Rules of Court override any sympathy to the Plaintiff and levied substantial costs consequences.
The decision is also worth reviewing for the discussion of whether a post offer costs award to a Defendant can include disbursements.  The Plaintiff argued the Rules don’t contemplate this but the Court disagreed. In finding disbursements were also encompassed in the Rule Madam Justice Fitzpatrick provided the following reasons:
[65]         Rule 9-1(5) is headed “Cost options”. It is clearly intended to guide the court in deciding what costs award is just. Nevertheless, I do not see that subcategory (d) was intended to limit the discretion of the court to award a defendant’s disbursements in all cases when rewarding a defendant for making a reasonable offer. In many cases, disbursements are significant. In fact, the driving force behind an offer to settle may be the desire to avoid having to pay those disbursements. To limit the discretion of the court in awarding disbursements would defeat the clear intention of the Rule.
[66]         Although Brown J. came to another conclusion in Moore relating to double disbursements under Rule 9-1(5)(b), it appears that Kendall and Skidmore were not in front of her at that time. Therefore, in applying the principles set out in Re Hansard Spruce Mills Ltd., [1954] 4 D.L.R. 590, I do not consider that I am bound by her reasoning.
[67]         I acknowledge that the wording of Rule 9-1(5), in its reference to “disbursements” in subcategory (a) without an accompanying reference to “disbursements” in subcategory (d), is awkward and confounding. In my view, however, the fundamental purpose of the Rule — which, as stated by the Court of Appeal in Kendall and Skidmore, is to compensate for all “costs”, including disbursements — has not changed. One can only hope for some clarity on this issue by possible amendments to Rule 9-1(5).
[68]         In the meantime, I conclude that I have the discretion under Rule 9-1(5)(d) to award the defendant his costs, including disbursements.
[69]         I award such costs, which will include disbursements, in favour of Mr. Voskakis for the period from January 25, 2012 until February 29, 2012.

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ERIK
MAGRAKEN

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.

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