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:
 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.
 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…
 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.
 The disbursements on that Bill of Costs should reflect my decision, together with the effect of my decision on applicable taxes.
 If required, plaintiff’s counsel may submit to me a revised Bill of Costs and certificate, in accordance with these reasons.
Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, ordering a Plaintiff to pay double costs to a Defendant after a jury dismissed her injury claim.
In the recent case (Brar v. Ismail) the Plaintiff alleged injury following a collision and sued for damages. Prior to trial the Defendants offered to settle for $50,000. A further offer of $65,000 was tabled. Neither side compromised and the Plaintiff proceeded to trial where damages of over $500,000 were sought. The Defendants attacked the Plaintiff’s credibility and introduced surveillance evidence which the court called “compelling”.
The Jury ultimately dismissed the claim. In ordering that the Defendants were entitled to pre offer costs and post offer double costs Mr. Justice Myers provided the following reasons:
 The issue of whether an offer to settle ought reasonably to have been accepted is determined by the factors existing at the time of the offer and not with the hindsight of a judgment or jury verdict.
 The main point this question hinges on is whether the credibility issues were obvious and significant enough to the plaintiff so that she ought to have accepted one of the offers.
 From at least the time the video surveillance was delivered, it was obvious that the plaintiff’s credibility would be front and center. There were inconsistencies between what it showed and what she relayed to her experts. It was also obvious these inconsistencies would have a significant impact on her case. I do not agree with the plaintiff that what was seen in the video was not far off what she had had told her experts or said in evidence. Often video surveillance is not compelling; here it was.
 Moreover, as argued by the defendants, the plaintiff also had further credibility difficulties that ought to have been apparent to her counsel:
· The plaintiff’s evidence was that she hit her head in the accident and had immediate dizziness and nausea including vomiting at the accident scene; however, these complaints were not documented in her GP’s records during her initial visit, which was only hours after the accident. Her GP testified that he would have made a note of these complaints if they were made to him.
· The plaintiff’s evidence that she was disoriented and vomited at the accident scene was contradicted by Mr. Ismail’s evidence and that of his brother;
· In her discovery, the plaintiff said she had not done any form of work, whether paid or voluntary. She had also stated during her examination for discovery that she never helped her husband in his business (even though she was president and 100% shareholder). However, at the trial she acknowledged she had in fact done work for her husband’s business since the accident. Further the surveillance video showed the plaintiff working at an elections voting station.
· At examination for discovery the plaintiff stated she did not have any other sources of income other than what she received from her employer, Swissport. She also said she did not own any other properties other than her primary residence. However, her income tax records showed significant amounts of rental income, and she later admitted at trial that she and her husband received rental income from a property she was on title for. Her reported rental income was more than she had ever earned from Swissport before the accident.
 I said I would return to the timing of the second offer There was nothing to prevent the defendants from providing the surveillance far sooner, given its importance; as noted above, it was completed in January 2018. The fact that it was disclosed in compliance with the rules does not mean that its timing cannot be a consideration with respect to the discretion to award double costs. As well the $65,000 offer, which was not delivered until five days before trial, could have been delivered sooner. This would have given the plaintiff more time to consider her position, without prejudicing the defendants. Therefore, in my view, the defendants should receive ordinary costs up to and including the first five days of trial and double costs after that.
Reasons for judgement were released this week by the BC Supreme Court, Chilliwack Registry, ordering a Plaintiff to pay double costs after having a personal injury lawsuit dismissed.
In the recent case (Sandhu v. Raveendran) the Plaintiff was a passenger in a vehicle driven by her husband which was involved in a parking lot collision with another vehicle with the Court noting “the contact between two vehicles was relatively superficial”. The lawsuit was ultimately dismissed with Mr. Justice Brown ruling “ In this case, I find a lack of convincing evidence that this minor, slow-moving parking lot accident caused the plaintiff any compensable injury. Accordingly, the plaintiff’s claims for damages are dismissed with costs.”
Prior to trial ICBC made a formal settlement offer of $5,000. ICBC asked for double costs. The court agreed noting the offer ought to have been accepted. In granting the request for double costs Mr. Justice Brown provided the following reasons:
 The defendant submitted, reasonably, that considering the very minor nature of the collision, the plaintiff should have accepted the offer. Counsel for the defendants correctly pointed out no complicated issues required the plaintiff’s consideration before accepting the offer. There is no claim advanced for loss of past or future income and no future care costs claimed. Considering the very minor slow-motion contact between the vehicles, it cannot be reasonably maintained that there is any reasonable basis for such claims.
 I find the defendants entitled to double costs for the period between the date of the offer to settle, March 1, 2017, and the commencement of trial, on March 7, 2017. Considering all the circumstances, the offer ought reasonably to have been accepted by the plaintiff.
Reasons for judgement were published today by the BC Supreme Court, Vernon Registry, confirming that an order for double costs does not also mean a party is entitled to double disbursements.
In today’s case (Lafond v. Mandair) the Plaintiff was injured in a collision and sued for damages. Prior to trial the Plaintiff made a formal settlement offer of $300,000. At trial the Plaintiff beat this quantum being awarded just over $343,000.
The Plaintiff sought double costs and disbursements. The Defendant agreed double costs were in order but argued that double disbursements were not recoverable. The Court agreed and in doing so provided the following succinct reasons:
 Double costs may be awarded for some or all steps taken after delivery of the offer to settle. A step in the proceeding is a formal step that moves the action forward: Canadian National Railway Company v. Chiu, 2014 BCSC 75 at para. 7.
 Incurring a disbursement is not a formal step as contemplated by the Civil Rules.
 I, therefore, conclude that under Rule 9-1(5)(b), double disbursements are not to be awarded as part of double costs. Thus, a successful offer to settle can be rewarded with an entitlement to double costs for tariff items, together with actual and reasonable disbursements.
Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, ordering a Plaintiff to pay double costs after the dismissal of an injury claim.
In today’s case (Ross v. Andrews) the Plaintiff was involved in a 2011 collision, alleged injury and sued for damages. Prior to trial the Plaintiff declined two formal settlement offers, the first for $41,000 the second for $75,000.
After 15 days of trial “the jury deliberated and determined that the plaintiff had not been injured in the motor vehicle accident”.
Under the loser-pays BC Supreme Court rules the Plaintiff was ordered to pay the Defendant’s costs and double costs from the time of the second offer onwards. After a 15 day jury trial it is a safe bet that the costs consequences would be in the tens of thousands of dollars. In finding double costs appropriate Mr. Justice Ball provided the following reasons:
20] The evidence aforesaid created significant areas where the credibility of the plaintiff was subject to negative findings by a jury. When those areas are added together the plaintiff ought to have actively considered any offer which offered a positive return without the risks of a trial.
 Based on a review of the evidence at trial, described in part above, and the cases cited, as well as a review of the submissions of counsel, I find that the offer to settle in the amount of $75,000 ought reasonably to have been accepted by the plaintiff having given consideration to the foreseeable credibility problems and the negative verdict of the jury. The offers to settle both included positive returns whereas at trial the plaintiff’s action was dismissed. The relative financial circumstances of the parties do not preclude an order for double costs in this situation. As a result, applying Rule 9-1 of the Supreme Court Rules, the defendants are entitled to the costs of this action generally and double costs of this action commencing on May 26, 2016. This date is seven days after the second offer to settle was delivered to the plaintiff; a reasonable period of time for the plaintiff to consider the offer. Double costs are awarded from May 26, 2016 until the end of the trial and will include the costs of the application to fix costs. The defendants are also entitled to disbursements but not doubled.
 If the parties are unable to agree on the quantum of costs and disbursements, there shall be a reference to the registrar to assess costs pursuant to Rule 14-1(4) of the Supreme Court Rules.
Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff double costs after obtaining judgement nearly doubling her pre trial formal settlement offer.
In the recent case (Risling v. Riches-Glazema) the Plaintiff was inured in a motor vehicle collision and prior to trial made a formal settlement offer of $315,000. The Defendants rejected the offer and proceeded to trial where damages of $622,500 were awarded. The Plaintiff sought and was granted post offer double costs. In agreeing these were warranted Mr. Justice Affleck provided the following reasons:
 In my view:
a) The plaintiff’s case was well known to the defendants at the time of the offer. The plaintiff had been examined for discovery on two occasions; had attended two medical examinations at the request of the defendants, and a mediation had taken place in June 2016;
b) the offer was made one week before the trial began which gave the defendants a full opportunity to consider it;
c) the offer had a relationship to the claim and could not be characterized as a “nuisance offer”; and
d) the offer was expressed in plain language and thus easily evaluated.
 The final judgment of the court greatly exceeded the offer. The plaintiff submits her offer was a true attempt to reach a reasonable compromise of the claim and that the rationale for the double cost rule is to encourage parties to settle by taking a realistic view of the probable outcome of a trial. The plaintiff submits that rationale would be thwarted if in the present circumstances she is not entitled to double costs.
 The defendants submit their limited understanding of the case made it difficult to quantify the claim and that, while the rationale for the rule for double costs is acknowledged, the defendants ought not to have been deterred from defending the claim for fear of a “punishing costs award”. Currie v. McKinnon, 2012 BCSC 1165 is relied on in support of that argument.
 The defendants also submit that “no rationale for the offer was provided” in the plaintiff’s letter of August 15, 2016.
 I do not agree that no rationale was provided. The plaintiff described the heads of damages she would advance at the trial and advised that the offer took into account “Part 7 Benefits paid or payable pursuant to Section 83 of the Insurance (Vehicle) Act”. Furthermore, the defendants had an opportunity on the mediation to canvas fully with the plaintiff’s legal advisers the extent of the plaintiff’s claim and the evidence at trial which would be advanced to support the claim.
 I am also mindful that in Hartshorne the Court of Appeal expressed the view that the list of factors described in para. 27 of its reasons need not be relevant in every case.
 Currie v. McKinnon does not help the defendants on this application. That case involved a personal injury claim with an award of damages which fell within the monetary jurisdiction of the Small Claims Court. Double costs were not awarded. In short Currie v. McKinnon is distinguishable on its facts from the matter before me to such an extent that it cannot usefully be called in aid of the defendants’ argument.
 The plaintiff is entitled to the costs of this action including double costs from the date of the offer.
Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, criticizing a costs argument advanced by defense counsel after failing to best the Plaintiff’s formal settlement offer at trial.
In today’s case (Tenhunen v. Tenhunen) the plaintiff was injured when she tripped and fell on a deficient ramp constructed by the Defendant. At trial both were found equally to blame for the incident. Prior to trial the Plaintiff made a formal settlement offer of $80,000. The Defendant did not accept this and the trial damages awarded amounted close to $125,000.
The Plaintiff sought post offer double costs but the Defendant opposed arguing, in part, that the Defendant was of modest means. The court, suspicious of this argument asked about whether the claim was insured to which Defence counsel refused to answer citing the Code of Professional Conduct. Plaintiff’s counsel then “provided a copy of the policy of insurance that the defendant was obliged to produce” which led to the following judicial criticism of the defence argument and an award of partial post offer double costs –
 The defendant’s principal argument is based on Rule 9-1(6)(c), as she points to her own unfortunate circumstances, subsisting barely on a disability pension, and contrasts this to the far better financial position enjoyed by the plaintiff, who had been employed on an income between $77,000 and $101,511 in the five years between 2009 and 2013. The defendant argues that this financial disparity militates against an order for double costs. This submission, bearing in mind the evidence at trial, raises a logical question of insurance coverage.
 The plaintiff and defendant are mother and daughter, respectively. They were and are close. The defendant ordinarily lives in the rented house where the plaintiff fell and suffered her injury, and from the photographs submitted into evidence, that residence would not suggest an ability to pay substantial damages. It is unlikely in the extreme that the plaintiff would sue her daughter, and proceed to trial, if the only prospects of recovery were limited to the defendant’s disability pension.
 While the defendant’s straightened finances would argue against her being able to afford insurance premiums, those same financial constraints would argue more strongly against the defendant being able to afford to retain senior counsel for the entire action, or to offer to settle her mother’s claims for $80,000 all-inclusive on October 30, 2014. I recognize that an offer to settle is not a guarantee of payment, as it would simply have entitled the plaintiff to enter judgment for the amount of the offer, had she accepted it. In these circumstances, however, the plaintiff would have every reason to know that her daughter had no ability to pay the amount offered from her own funds.
 The defendant’s argument under Rule 9-1(6)(c) made the question of insurance relevant to the costs issue, and by memorandum to counsel I invoked Rule 7-1(4) and asked if there were a policy of insurance to which the defendant could turn for indemnity. The Rule provides:
Despite subrule (3), information concerning the insurance policy must not be disclosed to the court at trial unless it is relevant to an issue in the action.
 Counsel for the defendant replied to this question in this way:
Finally, and more on the basis of a footnote, the Court has inquired as to whether there is a policy of insurance that the Defendant may look to for indemnification of damages and Costs. It would be entirely inappropriate for defence counsel to make any submission as to whether Ms. Kim Tenhunen may or may not look to a policy of insurance for indemnification. Defence counsel has a dual retainer in the circumstances and owes an obligation to both the Defendant and to an insurer not to compromise their respective interests: Professional Conduct Handbook, Chapter 6.4(a-d).
 The Code of Professional Conduct for British Columbia (BC Code) replaced the Professional Conduct Handbook on January 1, 2013. I have examined the previous rule cited by counsel, and see nothing there to prevent the disclosure requested. I have examined the BC Code, with the same results.
 The most charitable interpretation of counsel’s argument is that it is hypothetical. Even on that assumption, it still does not respond to the question posed under Rule 7-1(4), and that is whether the existence of a policy of insurance is relevant to the costs issue, and, if it is, whether there is a policy of insurance available to the defendant in this case.
 How a lawyer’s duties are supervised by the Law Society – to both an insurer who retains the lawyer and the insured on whose behalf the lawyer acts under the retainer – have little to do with the question raised in this application. Nothing in the question put to counsel could raise a risk of dividing counsel’s loyalties to an insurer and insured, assuming that is the relationship that has existed.
 Counsel for the plaintiff has provided a copy of the policy of insurance that the defendant was obliged to produce as part of pre-trial document discovery. The argument against double costs based on the parties’ relative financial circumstances ought not to have been made.
Reasons for judgement were released today by the BC Court of Appeal (C.P. v. RBC Life Insurance Company) confirming that a trial judge does not have the option of awarding a Defendant double costs in circumstances where a Plaintiff obtains a judgement at a quantum below a Defendant’s formal offer to settle. In noting this restriction in judicial costs options the Court provided the following reasons:
 Neither the trial judge nor the judge at Minhas made reference to the decision in Gulbrandsen v. Mohr, 2013 BCSC 1481. In Gulbrandsen the trial judge, in reasons indexed at 2013 BCSC 959, initially awarded the plaintiff costs up to the date of the defendant’s offer to settle, and double costs to the defendant thereafter. He then reconsidered the double cost award. After reviewing numerous authorities including A.E., A.E. Appeal,Ward v. Klaus, 2011 BCSC 99 and Currie v. McKinnon, 2012 BCSC 1165, he concluded that it was not appropriate to make an award of double costs to a defendant where the plaintiff had obtained a judgment.
 I am of the same opinion. I do not believe that R. 37B intended to change the long-standing practice concerning the circumstances when double costs could be awarded. A plaintiff who obtains a judgment for less than an offer to settle is already subject to sanctions: R. 9-1(6)(a) allows the court to deprive the successful plaintiff of costs to which it would otherwise be entitled. Rule 9-1(5)(d) provides an even more punishing outcome as the plaintiff is not only deprived of costs he or she would otherwise receive, but must also pay the defendant’s costs subsequent to the offer to settle. To also allow a defendant double costs would skew the procedure in favour of defendants and unfairly penalize and pressure plaintiffs. I would adopt in that regard the comments of Madam Justice Adair in Currie:
 I think it certainly can be argued that if a defendant who has made an offer to settle in an amount higher than the amount awarded to the plaintiff at trial (and that is what has been done in this case) was then awarded double costs, this would skew the procedure in favour of defendants and unfairly penalize and pressure plaintiffs. This is because a plaintiff who rejected an offer to settle would potentially risk a triple cost penalty if he or she were to win at trial an amount less than the offer. The plaintiff would suffer loss of the costs that he or she would normally receive on obtaining judgment at trial, and face double costs payable to the defendant.
 In my view, there is a good reason to apply Rule 9-1 in a way that is even-handed, or more even-handed, as between plaintiffs and defendants. I would say for this reason one would expect to see double costs awarded to a defendant, using the offer to settle procedure, in exceptional circumstances only, such as a situation where the plaintiff’s claim was dismissed all together after a plaintiff rejected an offer to settle.
 In the result, I find that it was not open for the trial judge to award double costs to the defendant. It was an error in principle to do so. The decision in Minhas which made a similar order was also wrongly decided and should not be followed.
Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, rejecting a request for double costs following a trial where a Plaintiff beat her formal settlement offer by a slim margin.
In today’s case (Griffith v. Larsen) the Plaintiff suffered an injury in a collision. Prior to trial the plaintiff provided a formal settlement offer of $85,000 which was rejected. At trial she was awarded $85,159. The Plaintiff asked for double costs but Mr. Justice Affleck refused to award these finding it would not be appropriate in the face of credibility concerns and further with the Defendant enjoying some success at trial on one of the most contentious issues. In rejecting the request for double costs the Court provided the following reasons:
 I have considered two factors which have influenced my decision against awarding double costs. The first is my findings of credibility which were not favourable to the plaintiff. While I concluded the plaintiff had suffered soft tissue injuries of some duration which were deserving of an award of damages, I also concluded that she had not given her evidence with candour. An award of double costs is meant in part to penalize a party for failing to accept a reasonable offer. On the other hand a party who has not been candid with the court at least in some instances ought not to be rewarded with double costs even if her damage award exceeds the offer. This is one of those instances.
 The second factor I have considered is the defendants’ relative success on the most contentious issue at the trial. The plaintiff advanced a claim far exceeding the award which was largely predicated on the proposition she would need surgery to overcome a disabling thoracic outlet syndrome. I did not accept the plaintiff’s evidence on that issue. The defendants largely succeeded in persuading me that the thoracic outlet syndrome, if the plaintiff actually experienced it, had little effect on her physical condition. That is a further reason for concluding it is not appropriate to penalize the defendants with an award of double costs.
 In Mudry v. Minhas, 2010 BCSC 1110, Kelleher J. discussed apportionment of an award of costs for relative success on an issue under the then Rule 57(15). While the court concluded the plaintiff had not met the test for apportionment, the plaintiff’s success in that case on the issue of fault (although no damage was found and the action dismissed) was a relevant factor under Rule 37B(6)(d), now Rule 9-1(5)(b), on considering if the defendant was entitled to double costs when there had been a defence offer, which in Mudry obviously exceeded the damage award which was nil..
 I acknowledge there is some merit to the plaintiff’s submission that, notwithstanding the absence of success on the issue of thoracic outlet syndrome, the plaintiff’s offer took into account the risk of failure on that issue. Nevertheless, in the circumstances of this action I am unwilling to penalize the defendants in costs when they largely succeeded on that question. The usual rule will prevail that party and party costs on Scale B follow the event.
Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, addressing whether a formal settlement offer open for only 3 days could trigger costs consequences.
In today’s case (Henry v. Bennett) the Plaintiff was involved in a 2008 collision and sued for damages. The claim was ultimately dismissed with the Plaintiff being at fault for the crash. Prior to the trial the Defendant provided a formal offer of $30,000 which was only open for acceptance for three days.
The Plaintiff argued that the offer should not attract double costs in part due to its short window. Madam Justice Ballance disagreed finding given the significant liability risks at trial it was a reasonable offer. In addressing its short lifespan not being a barrier the Court provided the following reasons:
 I would ordinarily regard a three-day fuse attached to an offer that was delivered close to the eve of trial, where it would be expected that the party would be engrossed in the demands of trial preparation, as posing an unreasonable time constraint within which to give it meaningful evaluation. The difficulty facing Mr. Henry, however, is that due mainly to his own damaging discovery evidence, he ought reasonably to have anticipated that he faced significant exposure of not only faring poorly on the issue of liability, but losing his case altogether. Knowing, as he did, his harmful evidence, Mr. Henry should have appreciated the deep weakness of his claim and the risk of significant apportionment against him or the outright dismissal of his suit and his exposure for an adverse costs award. All things considered, the 2011 Offer was one that ought reasonably to have been accepted by Mr. Henry.
 With respect to other the pertinent factors, in dismissing Mr. Henry’s case, the Court placed heavy emphasis on his discovery evidence concerning liability for the accident. Relatively little is known about Mr. Henry’s specific financial circumstances. Based on the evidence at trial, it is reasonable to infer that his financial situation is modest. However, that, of itself or in combination with any other factor, is not reason enough in this case to refuse the defendant an award of double costs.
 The defendant is entitled to costs of this proceeding at Scale B up to and including March 8, 2011, and double costs thereafter.