Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, demonstrating judicial discretion in dealing with costs after a plaintiff fails to beat a defence formal offer at trial.
In today’s case (Barta v. DaSilva) the Plaintiff was injured in a 2007 collision and sued for damages. The Plaintiff alleged traumatic brain injury and argued that he had millions in losses as a result. At trial a jury rejected the alleged brain injury and awarded damages of $77,000 for the Plaintiff’s proven injuries. Prior to trial ICBC offered to settle the case for $150,000.
The Plaintiff sought full costs for the trial where ICBC sought to have the Plaintiff pay their post offer costs or simply strip each party of costs for the trial itself. In the end the court ordered that each party bear their own costs of the trial. In finding this fair the court noted that due to the Plaintiff’s ‘meagre‘ income there would be “no utility in imposing the costs of the trial on the plaintiff.”.
In reaching this decision Mr. Justice Affleck provided the following reasons:
 The defendant’s offer of $150,000 plus costs and disbursements was a serious offer. The plaintiff ought to have known that the defendant’s legal advisers had a plausible basis for concluding that the plaintiff would be unable to prove a causal connection between his accident injuries and his financial losses. In my opinion the defendant’s offer ought reasonably to have been accepted.
 The relative financial position of the parties is of no consequence on this application. The defence was conducted by ICBC, which obviously has much greater financial strength than the plaintiff, but unless it used that strength improperly in this litigation that is a neutral factor: See Vander Maeden v. Condon, 2014 BCSC 677.
 When its offer to settle was not accepted the defendant had no serious option but to defend the action at trial. The result was an award of damages about one half the offer made by the defendant. In that circumstance the deterrent function of the costs rule would be nullified if I exercise my discretion by awarding costs to the plaintiff throughout as he submits I should. I declined to do so.
 The evidence at trial indicates that the plaintiff’s assets were severely depleted by the effects of the financial downturn in 2008 and 2009. Mr. Creighton informed me that his client’s income is now meagre. I can see no utility in imposing the costs of the trial on the plaintiff.
 My order is that the plaintiff is entitled to his costs and disbursements to and including May 15, 2014, and that thereafter the parties will each bear their own costs and disbursements. I recognize that the usual order would be to impose the costs following the defendant’s offer on the plaintiff. The defendant, however, has proposed the disposition which I have made, which I consider to be generous to the plaintiff in the circumstances.
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 published today by the BC Supreme Court, New Westminster Registry, assessing damages for the permanent aggravation of a pre-existing injury.
In today’s case (Churath v. Cheema) the Plaintiff was involved in a 2011 rear end collision. Prior to this the Plaintiff suffered a disc injury to his spine which required surgical correction and was well on the way to recovery. The collision caused an aggravation of the injury the effects of which were likely permanent. In assessing non-pecuniary damages at $125,000 Mr. Justice Affleck provided the following reasons:
 I make the following findings of fact:
a) the plaintiff suffered a low back injury while playing volleyball in 2010, which caused a serious disc herniation. Prior to that event he had been symptom-free in his low back;
b) the plaintiff’s surgery following the volleyball incident was successful. He was making a steady recovery and in due course would have become largely if not entirely symptom-free but for the car accident;
c) the car accident caused the injuries and symptoms from the volleyball incident to recur. The plaintiff’s current disability is largely explained by the car accident injuries;
d) the injury from the volleyball incident and from the car accident is an indivisible injury and division is neither possible or appropriate: Athey at para. 25;
e) the plaintiff has continuing moderate pain and disability. He can walk adequately and drive a car although with some discomfort. His physical symptoms have diminished his employability, but he is capable of regular employment which makes only light demands on his physical capacities;
f) the plaintiff’s employment with Allegra was ending because of changing technology in the printing industry. The plaintiff is not capable of retraining for that industry. He has a limited education, limited English language skills and minimal computer literacy. The Allegra job would have ended within a maximum of five years from the time of the car accident, even if it had not happened. The plaintiff thereafter would have made a small income using the offset printer at his home if he had not had the car accident. He remains capable of earning a small income by that means; and
g) the car accident injuries are permanent, but when this litigation ends the plaintiff will become more active…
 The plaintiff was about 46 years old at the time of the car accident. The injuries were severe and led to surgery. He will not recover entirely. There inevitably has been emotional suffering and distress. The relationship with his family, perhaps particularly with his wife, has been impaired, but I do not consider that will be permanent.
 The plaintiff continues to have some disability. I have found that it is not as extensive as he wants this Court to believe. I am satisfied he can exercise reasonably vigorously; he can walk for extended periods of time; he can perform chores around his home, and he can lift heavier weights than the 20 pound bag of flour which he testified he could not lift.
 I assess non-pecuniary general damages at $125,000.
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic low back injury.
In today’s case (Truong v. Lu) the Plaintiff was involved in a 2011 collision the Defendant accepted fault for. The Court found the collision caused a chronic low back injury that was amplified by non-collision related depression. In assessing non-pecuniary damages at $100,000 Mr. Justice Affleck provided the following reasons:
 The termination of Mr. Truong’s employment, particularly at the age of 58 when other employment was difficult to find, was an emotionally catastrophic event for him. He believed erroneously but sincerely that the job loss must have been connected to his poor performance on the job, which had been caused by the accident injuries. He was naturally upset by the immediate effects of the accident and in that sense was depressed emotionally by those effects and by his fear that he might lose his job. After that loss occurred he descended into a major depression. I believe the precipitating event that caused the major depression was the loss of employment and thereby the loss of his self-respect. I accept Dr. Shaohua Lu’s evidence that the major depression would not have happened without the job loss.
 Even without the depression I find Mr. Truong would have experienced physical pain and discomfort for some considerable time after the accident. I find the plaintiff’s low back pain, which travels into his left leg, as well as his neck pain, even in the absence of the major depression, would have continued but gradually diminished over the last five years. It will remain chronic indefinitely into the future, but with medication for pain relief will no longer limit his ability to function to any significant extent.
 The defendant is critical of much of the plaintiff’s evidence as unreliable and accuses him of embellishment particularly for example when undergoing a functional capacity evaluation. I agree there was some embellishment but I believe it was not deliberate deceit. Mr. Truong genuinely believes he is severely disabled and adjusts his behaviour, without conscious thought, to fit the way he sees himself. He is also very reluctant to push his physical boundaries because of a fear of further injuries. In my view that fear is not justified and there is no risk of further injury if he becomes more active…
 I have been referred by the parties to numerous cases in which non-pecuniary damages were awarded. I need not review those authorities in these reasons for judgment. I am persuaded a substantial award should be made under this head of damage largely because, apart from his work with C2 Imaging the plaintiff’s handyman role at home provided him with one of his main pleasures in life and in late middle age he has been deprived of that role for at least several years. I award $100,000 under this head of damages.
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, finding that a formal offer delivered 2 business days prior to trial was sufficient to trigger costs consequences.
In the recent case (Manoharan v. Kaur) the Plaintiff sued for personal injuries and 2 business days prior to trial delivered a formal offer of $425,000. This was rejected by the Defendant and at trial damages in excess of $900,000 were awarded. The Defendant argued that double costs should not be awarded because of how late the offer was presented. In rejecting this argument Mr. Justice Affleck provided the following reasons:
 As would be expected both parties at that time had been actively considering the question of how to evaluate the likely damage award and to assess whether an offer made by the other party ought reasonably to be accepted. The defendant suggests she was pressed for time to respond to the plaintiff’s offer and if double costs are to be awarded they ought not to be assessed from the beginning of the trial.
 In my opinion, the defendant had ample time to respond to the plaintiff’s offer and to consider whether the offer was one which reasonably ought to have been accepted.
 The final judgment awarded exceeded $900,000. I have considered the factors enumerated in Rule 9–1(6) and conclude the plaintiff is entitled to party and party costs on Scale B up to the beginning of the trial and double costs for the trial itself.
Update February 23 2018 – An appeal of the below case was dismissed this week by the BC Court of Appeal
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, considering whether a Plaintiff’s substantial losses in the stock market could be compensated as part of a personal injury lawsuit. On the facts of the case the Court rejected this claim.
In today’s case (Barta v. DaSilva) the Plaintiff was involved in a 2007 collision caused by the Defendant. The Plaintiff alleged that the collision caused a mild traumatic brain injury and this “destroyed his capacity to earn an income, trading securities on his own account, and has caused him to lose the capital he accumulated and invested in the stock market“.
Around the time of the crash the plaintiff’s total portfolio was valued around $1.8 million. By the end of the 2009 the value plummeted to less than $400,000. In rejecting the claim that a brain injury had anything to do with this diminished asset, Mr. Justice Affleck provided the following reasons:
 By July 31, 2008, a year after the accident, the plaintiff’s portfolio had increased to $2,790,301.95. He had made successful trades in that year increasing his portfolio by almost $921,000. There is no possible inference to be drawn that cognitive impairment had damaged his trading ability during this time period. Then disaster struck. In September 2008 the market “crashed” and the plaintiff testified that he was “hit hard”.
 The plaintiff had purchased Lehman Brothers Holdings prior to the crash and had made a considerable capital gain in a few days. This appeared to have encouraged the plaintiff to hold Lehman Brothers even as his own financial crisis deepened, as did that of the market generally. This the plaintiff argues indicates his impaired judgment following the accident. However, I have no basis to conclude his decision to retain the Lehman Brothers stock was irrational at the time it was made. He had made a substantial quick profit in a few days and I believe he concluded he could eventually continue to make money by holding on. He did not foresee Lehman Brothers would be forced into bankruptcy. Many investors suffered a similar fate…
…The plaintiff engaged in risky stock market trading over several years. He developed a level of expertise that permitted him to earn a reasonable income. However his unwise decisions made in 2008, coupled with the stock market collapse, and the judgment in favour of Mr. Palkovics created financial conditions from which he could not recover. In my opinion the effects of the accident did not compromise his ability to trade on the stock market.
 It is impossible not to have sympathy with Mr. Barta’s disastrous losses on the stock market but the evidence does not satisfy me that he has proven that the defendant’s negligence caused them.
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 judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for Thoracic Outlet Syndrome caused and aggravated by a series of collisions.
In today’s case (Griffith v. Larsen) the Plaintiff was involved in three rear end collisions. The Court found the first collision caused TOS or at least TOS like symptoms and this condition was aggravated by the subsequent collision. The Court had some concerns about the plaintiff’s credibility noting “there was an element of embellishment” with some of the Plaintiff’s evidence. The Court accepted the Defendants were responsible for the plaintiff’s injuries but found the condition was not particularly disabling. In assessing non-pecuniary damages at $75,000 Mr. Justice Affleck provided the following reasons:
 Dr. Salvian has formed his opinions relying heavily on the plaintiff’s self-report of symptoms. This is not a criticism. Nevertheless, my conclusion is that it is appropriate to be cautious when relying on these reports. It is also my conclusion that the plaintiff, whether or not she has TOS, is gradually improving. I do not accept her symptoms are sufficiently severe or her disabilities so pronounced that she is likely to agree to surgery. Her evidence is that she would seek a second opinion from that of Dr. Salvian and in my view she will approach the question of surgery with considerable reluctance. In my view it is more likely that there will be no surgery of the type Dr. Salvian frequently undertakes with his patients.
 As I have mentioned, Dr. McDonald, who knows the plaintiff’s condition, both from before and after the accidents, better than any of the other physicians who have testified, would not restrict the plaintiff’s activities in any way. I accept that evidence and it leads me to conclude the plaintiff has no present significant disabilities. Nevertheless, I find the plaintiff continues to experience symptoms, particularly from the first accident. In my view the second and third accidents were trivial but have had an exacerbating effect on the injuries from the first accident.
 The “common sense” approach recommended by the defendants is that trivial collisions cause trivial injuries. That approach has superficial plausibility but no more. As Mr. Justice Thackray observed in Gordon v. Palmer,  B.C.J. NO. 474 at para. 3:
Significant injuries can be caused by the most casual of slips and falls. Conversely, accidents causing extensive property damage may leave those involved unscathed. The presence and extent of injuries are to be determined on the basis of evidence given in court.
 I find the plaintiff will have had about four years of painful but gradually diminishing symptoms since the first accident until she recovers. I do not find that she is feigning her symptoms but that she has overstated them. It is likely that these symptoms will subside over the coming months, particularly if the plaintiff becomes more physically active as Dr. McDonald recommends.
 I also believe the plaintiff has become overly absorbed by the effects of the accidents on her life and has erroneously come to believe she is disabled from pursuing many of her former physical recreational pursuits. This belief is not shared by Dr. McDonald, nor is it my assessment of the plaintiff’s condition on all of the evidence…
 I assess the plaintiff’s non-pecuniary general damages at the sum of $75,000.
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing assesable costs when a fast track trial exceeds 3 days.
In today’s case (Peacock v. Paul) the plaintiff was involved in two collisions. Although only one of the cases was put into the fast track the Court deemed that Rule 15 applied to both actions. The trial took a total of 5 days. ICBC argued that costs should be capped at $11,000 but Mr. Justice Affleck declined to do so and used his discretion to increase costs by $1,500 for each additional day of trial. In reaching this conclusion the Court provided the following reasons:
 Madam Justice Neilson held that the formula set out in Anderson v. Routbard, 2007 BCCA 193 should be applied to determine what amount should be awarded. This formula involves first determining what portion of the lump sum provided for in the Rule is for pre-trial and trial costs. Madam Justice Neilson calculated this by taking the amount enumerated for a one day or less trial and subtracting it from the amount allowed for a two day or more trial. The difference is then multiplied by the number of days that the trial went over (paras. 31, 39). She concluded:
39 I would therefore allow the appeal, and calculate costs under R. 66(29) as follows. Under the present limits of $5,000 and $6,600 I take the pre-trial portion of costs to be $3,400, and $1,600 as representative of each day of trial. The plaintiff’s offer to settle was delivered only six days before trial. Thus, she is not entitled to double costs for trial preparation. She is, however, entitled to double costs for three and a half days of trial, calculated at $3,200 per day. Total costs are thus $14,600 ($3,400 plus $11,200) before disbursements and taxes.
 Similarly, this approach was used in Lam v. Chui, 2013 BCSC 1281 where the court considered the appropriate costs award in a fast track action where the trial took 13.5 days. The court held that the plaintiff was entitled to costs for 11.5 days after it deducted 2 days representing time wasted as a result of an error made by the parties concerning the date of the loan in question. Calculating the cost of a trial day at $1, 500 using the formula from Majewska, the court determined that the plaintiff was entitled to $23, 750 in costs ($11,000 for the first three days of trial and $1,500 per day for 8.5 days). The same approach was used inShiekh v. Struys, 2013 BCSC 1148.
 In Coutakis v. Lean, 2012 BCSC 1447, the court considered a successful plaintiff’s claim for costs in a fast track action. The trial took five days including one day where trial did not proceed due to illness of the judge. The court held:
10 Under subrule 15-1(15), the court is given a wide discretion to order an amount of costs other than the fixed amounts set out therein. In my view, this is a case which clearly calls for the exercise of that discretion, in favour of the plaintiff. That the hearing of the evidence took three days, rather than two, was largely as a result of the defence’s cross-examination of four of the plaintiff’s treating physicians, and the defence’s tendering as opinion evidence of the consultation report of a neurosurgeon. Hearing the evidence of all of these physicians took more than three hours, and, as I stated in my judgment, all of it was ineffectual. Further time was spent hearing irrelevant evidence from the defendant.
13 Using the amounts prescribed in the subrule as reference points, I award the plaintiff base costs of $14,000, plus disbursements.
 In the case at bar, the trial took two days longer than contemplated by R. 15-1(15)(c). Applying the authorities discussed above, in my view, the costs award should exceed $11,000 by adding a further $1,500 for each of the additional days of trial for a total costs award of $14,000 not including disbursements.
Update Auguaat 16, 2013 – In an interesting development, the below judgement was overturned by the Chambers Judge before entry of the costs order. You can find reasons here
Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, ordering a plaintiff to pay double costs to a defendant following a personal injury trial which failed to best the Defendant’s pre trial formal settlement offer.
In last week’s case (Gulbrandsen v. Mohr) was injured in a collision. In the course of the lawsuit the Defendant offered to settle for $50,000. The Plaintiff rejected this offer and proceeded to trial where a less favorable result was reached with damages being assessed at just over $28,000.
In the course of the trial the Court made negative findings about the Plaintiff’s reliability. In stripping the Plaintiff of her post offer costs and ordering that the Plaintiff pay double costs to the Defendant Mr. Justice Affleck provided the following reasons;
 In exercising that discretion there are three possible approaches I have considered. The first would be to award costs to the plaintiff up to the date of the offer and deprive her of costs thereafter. In my view that outcome cannot be justified. It would largely ignore the intent of the rules to provide for an award of costs in favour of a party who has made an offer which ought to have been accepted but was not. The second alternative would be to award the plaintiff costs up to the date of the offer and the defendant single costs thereafter. I would be inclined to make that award if the award of damages had fallen only slightly short of the offer. It did not.
 The remaining possible outcome I have considered is to award the plaintiff costs to the date of the offer and to award the defendant double costs thereafter, as he proposes. The factor which might militate against doing so is the relative financial circumstances of the parties. The plaintiff is a woman of modest means. I know nothing of the remaining defendant, Mr. Mohr’s, means. The action was defended by counsel instructed by ICBC. The court may take into account the presence of insurance coverage when assessing the relative financial circumstances of the parties: Smith v. Tedford, 2010 BCCA 302 at para. 19. However, the presence of insurance coverage is not always a relevant factor. As the court observed in Hunter v. Anderson, 2010 BCSC 1591 at para. 22:
…it is in circumstances where a defendant’s insurance coverage creates an unfair advantage leading to unnecessary costs through testing the plaintiff’s case, where an insurer’s financial circumstances supplant those of the litigant as a factor to consider in determining costs.
 I find that the presence of insurance coverage in the present case did not create an unfair advantage leading to unnecessary costs. It was the plaintiff who unreasonably rejected the defendant’s offer to settle. Therefore, I am unable to find a relevant significant disparity in the relative financial circumstances of the parties.
 Unless there is some compelling reason to the contrary, the defendant is entitled to double costs from the date of the offer. Not only is there no reason to the contrary, in my view there is a compelling reason to accept the defendant’s argument. In my reasons for judgment which awarded damages to the plaintiff, I nevertheless found the plaintiff was an unreliable witness. This was not simply a matter of a witness who was honestly mistaken. I concluded the plaintiff had attempted to persuade me of facts that she knew were not true. On the costs hearing the plaintiff complained about my conclusions regarding her credibility but the costs hearing was not an occasion to re-argue her case for damages.
 The plaintiff will be entitled to her costs up to the date of the offer to settle and the defendant will be entitled to double costs thereafter.
One issue that apparently was not argued on this application was whether the Rules of Court allow for double costs in these circumstances. While Rule 9-1 provides a Court with broad costs discretion following trials with formal offers in place, Rule 9-1(5)(b)
seems to limit the Court to single post offer costs to a Defendant where they best their formal settlement offer. I am not sure if this matter has been judicially considered but it is certainly an argument a Court would need to grapple with if asked to do so.