More on Rule 37B and ICBC Injury Claims
Reasons for judgement were released today by the BC Supreme Court providing more interpretation to Rule 37B in the context of ICBC Claims. (for background on Rule 37B and ICBC Claims see my former blog posts).
In today’s case (Jacobs v. McLaughlin) the Plaintiff sued 3 separate Defendants as a result of 3 separate accidents. All 3 Defendants made formal settlement offers before trial. 2 of the Defendants bested their formal settlement offers at trial. At issue was what costs consequences should follow as a result of this.
The court summarized the case law to date interpreting Rule 37B with the following analysis:
 The new rule broadens the discretion of the court, permitting it “to take offers to settle under the rule into account based on the factors set out later in the rule”: Cowichan Bay Contractors Ltd. v. Insurance Corporation of British Columbia (29 July 2008) Victoria 05/1639, at para. 5 [Cowichan Bay].
 Unlike its predecessor, Rule 37B does not mandate outcomes; if the plaintiff fails to beat an offer to settle, it does not mean that the plaintiff will automatically be deprived of costs, as this “interpretation would fetter what is clearly intended to be an unfettered discretion”: Bailey v. Jang, 2008 BCSC 1372,  B.C.J. No. 1952, at para. 19 [Bailey].
 In addition to providing for the court’s discretion to consider offers to settle, the new rule is permissive in its effect: British Columbia Society for the Prevention of Cruelty to Animals v. Baker, 2008 BCSC 947,  B.C.J. No. 1635 [B.C.S.P.C.A.]. Subrule (5) empowers the court to deprive a party, in whole or in part, of costs to which it would otherwise be entitled, or award double costs of all or some steps taken in the proceedings.
 The policy underlying the new Rule 37B remains the same as under the former Rule 37: to encourage reasonable early settlement of disputes “by providing that there will be consequences in the amount of costs payable when a party fails to accept an offer that ought reasonably to have been accepted”: Arnold v. Cartwright Estate, 2008 BCSC 1575, 86 B.C.L.R. (4th) 99, at para 16; Abma v. Paul, 2009 BCSC 60,  B.C.J. No. 87, at para. 23. The rule also exists to “deter certain kinds of conduct”: Bailey, at para. 18.
Rule 37B(6)(a): Reasonableness of the Offers to Settle
 The onus is on the defendants to establish that the offer was one that the plaintiff ought reasonably to have accepted: B.C.S.P.C.A., at para. 36.
 The plaintiff submits that this Court should not give any weight to the defendants’ offers to settle not solely because they were unreasonable, but because she was incapable of accepting any of the offers in isolation of the others. The plaintiff relies on Carvalho v. Agnotti, 2008 BCSC 386,  B.C.J. No. 559 [Carvalho], to support her argument.
 In Carvalho, the defendants made separate offers related to two separate car accidents involving the plaintiff. Mr. Justice N.H. Smith held that the substantial overlap in damage claims precluded acceptance of only one of the offers; instead, the plaintiff had to consider the two offers together. In this case, each of the three accidents caused separate and discrete injuries to Ms. Jacobs. Plaintiff’s counsel had overwhelming evidence prior to the onset of Ms. Jacobs’ MS that there were no “overlapping” injuries. Carvalho is distinguishable on this basis.
 I am satisfied that the factual evidence before the plaintiff should have led her to conclude that the offers could have been accepted in isolation of each other. This is not the imposition of hindsight reasoning, as argued by the plaintiff. Rather, it is the fair assessment of the factual evidence before the plaintiff as it related to her claim.
 Ms. Jacobs submits that at the date of delivery, following so soon after the third motor vehicle accident and the definitive diagnosis of her MS, she did not have an opportunity to obtain medical and legal opinions respecting the role of the trauma in the exacerbation of her MS.
 Under Rule 37B, a party must be afforded a reasonable period of time to “consider an offer and decide in the circumstances existing at the time of the offer whether it should be accepted or rejected”: Coquitlam (City) v. Crawford, 2008 BCSC 1507,  B.C.J. No. 2095, at para. 17 [Coquitlam].
 All parties agree that the plaintiff required a reasonable opportunity to investigate this allegation before deciding to reject the offers to settle.
 The defendants state that there should have been a reasonable time period in which to investigate the MS causation issue after July 17, 2006, when the issue became “alive”. The defendants submit that by December 31, 2006 the plaintiff should have been able to fully assess the legal principles and scientific research on the MS causation analysis as it related to her claim. Thus, they submit, it would have been reasonable for Ms. Jacobs to accept their offers to settle by that time.
 I note that the plaintiff amended her statement of claim to include the MS causation issue in October 2006.
 The plaintiff submits that it was reasonable for her to advance the MS causation issue up until a few weeks before trial, as her particular claim was supported by medical science, her physicians, and the law in British Columbia.
 At a pre-trial settlement conference on September 27, 2007, Mr. Justice Halfyard commented that the defendants’ defenses on the MS causation issue were strong and it would be difficult for the plaintiff to prove this allegation on a balance of probabilities.
 The plaintiff argues that it was unreasonable to accept the offers to settle after the settlement conference because it would have had serious cost implications for the plaintiff, ultimately leaving her with no compensation and in a deficit position, notwithstanding the admitted negligence of the defendants. Thus, the plaintiff submits, at no time was it reasonable for her to accept the offers to settle.
 The trial commenced on October 14, 2007.
 The plaintiff appears to have initiated the investigation into her injuries and their relationship to her MS around November 16, 2006, which is the date of Ms. Jacobs’ first appointment with Dr. Devonshire. However, any serious evaluation into this claim occurred much later; all reports relating to the plaintiff’s MS were dated July 2007 (Devonshire report) and August 2007 (Rathbone, Freeman, and Bateman reports), with the requests for these reports dated between two and four months prior to their receipt. The majority of Ms. Jacobs’ appointments related to these reports took place in the late spring and early summer of 2007.
 I find it difficult to accept Ms. Jacobs’ argument that it was unreasonable at essentially all times to accept the offers because she expected to succeed on the MS causation issue, given that she ultimately abandoned the argument. At some point, the medical and legal research done by counsel should have suggested that the factual and scientific evidence linking Ms. Jacobs’ injuries and her MS were not sufficient to bring to trial. As Mr. Justice Hall noted at para. 16 of Catalyst Paper Corporation v. Companhia de Navegação Norsul, 2009 BCCA 16,  B.C.J. No. 52:
 It seems to me that the trend of recent authorities is to the effect that the costs rules should be utilized to have a winnowing function in the litigation process. The costs rules require litigants to make careful assessments of the strength or lack thereof of their cases at commencement and throughout the course of litigation. The rules should discourage the continuance of doubtful cases or defences. This of course imposes burdens on counsel to carefully consider the strengths and weaknesses of particular fact situations. Such considerations should, among other things, encourage reasonable settlements.
 I accept the defendants’ submission that at some point before the settlement conference, neither the factual nor the scientific evidence supported the MS causation issue allegation. Knowing this, plaintiff’s counsel took the gamble anyway.
 Taking into consideration when the statement of claim was amended to include the MS causation issue, and the plaintiff’s receipt of her experts reports, I am satisfied that the plaintiff should have been able to evaluate her claim by August 15, 2007. At this point, the MS causation issue should have been abandoned, and the McLaughlin and Meehan offers ought reasonably to have been accepted.
 The plaintiff further submits that accepting the two offers which exceeded the judgment in this case would have saved neither time nor money, as the case against Ms. Moyer would have commenced in any event, and this court would have been required to hear all the evidence related to the three accidents.
 There are two difficulties with this submission. First, the injuries sustained in the accidents were discrete, thus, a claim against Ms. Moyer would not have required any evidence pertaining to the accidents involving Ms. McLaughlin and Ms. Meehan. Second, there are multiple purposes for assessing offers to settle in the award or deprivation of costs under Rule 37B, only one of which is indemnification.
Rule 37B(6)(b): Relationship Between the Terms of
Settlement Offered and the Final Judgment of the Court
 Subrule 37B(6)(b) could be used to assess, among other things, whether an offer is strategic (MacKinlay v. MacKinlay Estate, 2008 BCSC 1570, 44 E.T.R. (3d) 48) or confers a significant benefit aside from costs: B.C.S.P.C.A., at para. 34.
 The plaintiff submits that this Court should look at the difference between the global amount offered by the defendants and the global damages awarded by this Court and hold that the amount is insignificant. However, the offers were not made globally.
 I find that the differences between the offers to settle and the awards of both defendants are significant. The plaintiff recovered approximately 60% of the amount on offer by the defendant McLaughlin and precisely 60% of the amount on offer by the defendant Meehan.
Rule 37B(6)(d): Any Other Factor the Court Considers Appropriate
 The defendants argue that the old Rule 37(24) and the plaintiff’s unreasonableness should be considered.
 First, the defendants point out that they had no ability to structure offers with regard to the current rule, as they were made two years before it came into effect. The issue of the application of Rule 37B in the context of settlement offers made prior to its enactment was considered by Mr. Justice Macaulay in Cowichan Bay, who stated the following at para. 12 of his oral judgment:
 Finally, I take into account that at the time the offer was made in this case, the parties then reasonably expected that the rule in its then form would govern the consequences of the offer. Accordingly, there is no question that the plaintiffs have had notice of the potential consequences throughout the proceedings.
 I agree with the defendants that there was an expectation at the time the offers were made that success on the part of the defendants would inevitably give rise to an award of costs. This factor will diminish in significance over time, but so long as there is litigation involving offers to settle under the former rule, the consequences under that regime are factors to consider.
 The defendants also argue that the court should impose a penalty on Ms. Jacobs. The plaintiff caused a great deal of unnecessary costs and resources, which were expended by both sides in this litigation. In particular, the defendants prepared for a 30-day trial, and then had to modify this preparation after the plaintiff abandoned the MS causation issue on the first day of trial. This, alone, added significant costs to the defendants.
 The purposes of Rule 37B, to promote settlement, prevent unnecessary claims, and deter poor conduct, will lose its efficacy if a reasonable party is denied relief after attempting to resolve the case by settlement.