Further to my recent post on this topic, another case was just released by the BC Supreme Court considering whether the Court can consider the fact that the Defendant is insured when determining what costs consequences a formal offer of settlement should have in an ICBC Claim.
In today’s case (Cridge v. Ivancic) the Plaintiff was involved in a 2005 car crash in Surrey, BC. The Plaintiff sued for damages. Fault was admitted by the Defendant and the Court was asked to value the claim.
Prior to trial the Defendants (through their ICBC appointed defence lawyer) made a formal offer to settle the case for $50,000. The Plaintiff did not accept this offer and went to trial. At trial the Plaintiff sought damages of over $100,000. The claim was largely unsuccessful with the Court awarding just over $12,000 in total damages.
The Defendants brought a motion seeking that the Plaintiff pay their costs from the point of trial onward. The Court held that it was not unreasonable for the Plaintiff to reject the formal offer until the week before trial. As a result the Court awarded the Plaintiff her costs until that stage and the Defendants their costs from that time on. The result was the costs cancelled each other out. While there is nothing noteworthy about this result, the decision is worth reviewing because it is yet another precedent discussing whether insurance is a relevant consideration under Rule 37B. Madam Justice Fenlon held that the existence of insurance is a fair consideration stating as follows:
 Under R. 37B(6)(c), another consideration is “the relative financial circumstances of the parties”. The defendants were represented by ICBC. The plaintiff was unrepresented; she is a retired accountant in her 70s, and appears to be of limited means, working only part-time each spring during tax season.
 There is conflicting case law on the issue of whether a defendant’s insurance coverage is relevant to the consideration of the financial circumstances of the parties. In Bailey v. Jang, 2008 BCSC 1372 at paras. 32-34, 90 B.C.L.R. (4th) 125 [Bailey], Hinkson J. held that the defendant’s insurance coverage should not be considered because the wording of Rule 37B(6)(c) of the Rules of Court does not invite such consideration and because an insurer is not generally a party to the litigation. Bailey has been followed on this point in various cases, including Abma v. Paul, 2009 BCSC 60 at para. 32, 66 C.P.C. (6th) 100, and A.E. v. D.W.J., 2009 BCSC 505 at para. 58, 91 B.C.L.R. (4th) 372.
 However, in Radke at para. 42, Boyd J. held that the fact that the defendants were represented by ICBC and “had substantially greater resources to finance a trial than the individual plaintiff” is a relevant consideration under R. 37B(6)(c). Radke was followed in Smith v. Tedford, 2009 BCSC 905, 77 C.P.C. (6th) 308, where Mr. Justice Grist stated at para. 16 that “[t]he ability to have a case advanced by experienced and well funded counsel is, to my mind, a resource that should be taken into account in exercising the judicial discretion stipulated under the new Rule.”
 I find Mrs. Cridge’s modest financial means and the defendants’ representation by ICBC to be a relevant consideration, although not a significant or determinative factor in my decision.
As pointed out in my last article on the topic, Rule 37B has been on the books now for almost two years. The Court is clearly conflicted about whether the availability of insurance is a relevant factor under the rule. When the New BC Supreme Court Rules come into force on July 1, 2010 Rule 37B will be replaced with Rule 9. Rule 9 uses language that is almost identical to Rule 37B so the lack of clarity will likely continue. In light of the on-going conflicting authorities it will be useful if the BC Court of Appeal addresses this issue.