Tag: Rule 9-1(5)

Plaintiff Awarded Costs Despite Jury Awarding Damages Far Less than ICBC Formal Setttlement Offer

Written by ERIK MAGRAKEN on June 18, 2020. Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9.

Reasons for judgement were published today by the BC Supreme Court, Penticton Registry, dismissing a defence application for costs and awarding a Plaintiff full costs despite receiving a jury award substantially smaller than a pre trial formal settlement offer.

In today’s case (Duarte v. McMillan) the Plaintiff was injured in a 2016 collision that the Defendant accepted fault for. The matter proceeded to trial by Jury, an election made by ICBC on the Defendants behalf.

Prior to trial the Plaintiff made a formal settlement offer for $175,000. The Defendant made several formal offers with the highest being $88,000 plus costs. At trial the jury awarded far less with global damages being assessed at $22,000 being comprised of $7,300 for costs of future care and loss of homemaking capacity and $14,700 for non-pecuniary damages.

ICBC sought to have the Plaintiff pay costs. The court declined and instead awarded the Plaintiff full costs finding with the evidence available it was reasonable to reject the settlement offer and proceed to trial. In reaching this decision Madam Justice McDonald provided the following reasons:

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

Written by ERIK MAGRAKEN on November 4, 2019. Posted in BCSC Civil Rule 9.

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:

ICBC Hit With Double Costs Due To Inadequate Settlement Efforts

Written by ERIK MAGRAKEN on September 4, 2019. Posted in BC Supreme Court Costs Cases.

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:

ICBC Hit With Double Costs For “Unreasonable Refusal” To Settle Injury Claim

Written by ERIK MAGRAKEN on July 8, 2019. Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9.

Reasons for judgement were published today by the BC Supreme Court, Kelowna Registry, ordering ICBC to pay double costs after their ‘unreasonable refusal’ to accept a sensible settlement offer in an injury claim.

In today’s case (Stark v. Bartier) the Plaintiff was injured in a collision and sued for damages. Prior to trial the Plaintiff sought to settle her claim for $70,000 plus costs. ICBC refused to accept. At trial ICBC was ordered to pay almost 80% more with a final judgement of $126,430.

The Plaintiff applied for an order of double costs

"Marginal Difference" Between Trial Result and ICBC Settlement Offer Results in Full Costs to Plaintiff

Written by admin on May 2, 2018. Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9.

Reasons for judgement were published today by the BC Supreme Court, Victoria Registry, awarding a Plaintiff full trial costs after the Plaintiff failed to beat an ICBC settlement offer by a “marginal difference“.
In today’s case (Goguen v. Maddalena) the Plaintiff was injured in a collision the Defendant accepted fault for. The Plaintiff proceeded to trial where he was awarded total damages of $174,360.84.
Prior to trial ICBC made a formal offer to settle for $175,000. The Defendant argued that the Plaintiff should be deprived of some of his post offer costs for failing to beat the settlement attempt. In finding that a “marginal difference” does not warrant such an outcome Madam Justice Forth provided the following reasons:

[39] The plaintiff submits that the Defendant’s Offer was greater than the judgment amount by only $639.16, or approximately 0.5%. He argues that this marginal difference should afford little weight. In support, the plaintiff cites Saopaseuth v. Phavongkham, 2015 BCSC 45 at para. 74, in which Bernard J. noted that an award 2% greater than an offer to settle “suggests that little weight should be given to this factor”. Furthermore, in Zhao v. Yu, 2015 BCSC 2342 at para. 11, Baker J. held that an offer that exceeded an award by $1,800 was “of little significance in arriving at a decision about costs”.

[40] The defendant submits that the Defendant’s Offer was only with respect to the plaintiff’s tort claim and that acceptance of the offer would have allowed the plaintiff to collect Part 7 ICBC benefits. Therefore, the Defendant’s Offer exceeds the trial award by a larger margin that what appears on its face.

[41] The plaintiff, in reply, submits that he understood that any settlement offers made by the defendant were full settlements of both the tort claim and Part 7 claims against ICBC, and that at no time did defence counsel convey that Part 7 benefits would still be available in the event that the Defendant’s Offer was accepted.

[42] With respect to Part 7 benefits, I note the first page of the Defendant’s Offer reads in part:

The Settlement Payment:

(a) is offered after taking into account Part 7 benefits paid or payable, pursuant to section 25 of the Insurance (Motor Vehicle) Act, R.S.B.C. 1996, c. 231 (in respect of policies in force before June 1, 2007) and/or pursuant to section 83 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231 (in respect of policies in force on or after June 1, 2007);

[43] Neither counsel have provided submissions on the implications of this settlement term or the quantum of Part 7 benefits that would have likely been available to the plaintiff. As a result, it would be speculative of me to attach significant weight to the submissions on these points.

[44] Considering the marginal difference between the Defendant’s Offer and the ultimate award, this factor is of little significance in my determination…

[52] Taken together, the factors pursuant to subrule 9-1(6) weigh in favor of the plaintiff. As a result, I exercise my discretion to award the plaintiff costs pursuant to R 9-1(5)(c). The plaintiff is entitled to his costs at Scale B.

BC Supreme Court – Double Costs Does Not Mean Double Disbursements

Written by admin on June 28, 2017. Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9.

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:

[14] 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.

[15] Incurring a disbursement is not a formal step as contemplated by the Civil Rules.

[16] 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.

Court Denies Defendant Costs to Prevent "Pyrrhic Victory" for Plaintiff

Written by admin on April 11, 2017. Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9.

Reasons for judgement were released today demonstrating the Court’s discretion for costs following trial where formal settlement offers were exchanged.
In today’s case (Bains v. Antle) the Plaintiff was injured in a collision and sued for damages. Prior to trial the Defendant presented a formal settlement offer of $185,000. The Court noted that “some of the plaintiff’s initial negotiating positions were clearly inflated” but ultimately it was reasonable for the Plaintiff to refuse the Defendant’s offer and proceed to trial in the face of medical evidence supporting her alleged claim of chronic pain and related disability.
The decision proved costly with a jury awarding the Plaintiff damages of $37,800. The Defendant asked to be awarded post offer costs and to strip the Plaintiff of her post offer costs. The Court refused noting the Plaintiff is of modest means and having her pay Defendant costs would reduce the verdict to a Pyrric victory. In awarding the Plaintiff costs Madam Justice Power provided the following reasons:

[36] It is my view that all of the financial evidence at trial supports the fact that the plaintiff was a person of modest means. Having already concluded that the settlement offer was not one which ought to have reasonably been accepted, it is evident that an order requiring the plaintiff to either pay the well-funded defendants’ costs, or in the alternative denying the plaintiff her costs, from September 20, 2016 onwards, would result in a pyrrhic victory and could have the effect of discouraging plaintiffs from pursuing valid claims.

[37] As a result, although not determinative, the relative financial circumstances of the plaintiff and the defendant insurer are a consideration that I have taken into account.

[38] I am not persuaded that in these circumstances the court should exercise the discretion afforded to it under Rule 9-1(4) and (5). Having considered all of the relevant factors, I find that the plaintiff is entitled to her costs at Scale B and disbursements, including the cost of this application. The defendants’ application is dismissed.

Double Costs Awarded After Trial Judgement Nearly Doubles Plaintiff Formal Offer

Written by admin on February 20, 2017. Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9.

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:

[7] 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.

[8] 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.

…

[10] 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.

[11] The defendants also submit that “no rationale for the offer was provided” in the plaintiff’s letter of August 15, 2016.

[12] 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.

[13] 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.

[14] 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.

[15] The plaintiff is entitled to the costs of this action including double costs from the date of the offer.

Plaintiff Stripped of Costs For Failing to Beat Defence Offer

Written by admin on January 19, 2017. Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9.

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, stripping a Plaintiff of post offer costs after receiving a jury award less than a pre-trial defence settlement offer.
In today’s case (Rutter v. Vadnais) the Plaintiff was injured and sued for damages. About 2 years prior to trial the Defendant offered to settle for $50,000. The offer was rejected and at trial a jury awarded global damages of $20,000.
The Court stripped the Plaintiff of costs from the time of the offer forward which would significantly impact the award given the costs of running the trial. In reaching this decision Madam Justice Brown provided the following reasons:

[12] Turning to the effect of the offers exchanged in this matter, Rule 9-1(5) and (6) provides:

Cost options

(5) In a proceeding in which an offer to settle has been made, the court may do one or more of the following:

(a) deprive a party of any or all of the costs, including any or all of the disbursements, to which the party would otherwise be entitled in respect of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle;

(b) award double costs of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle;

(c) award to a party, in respect of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle, costs to which the party would have been entitled had the offer not been made;

(d) if the offer was made by a defendant and the judgment awarded to the plaintiff was no greater than the amount of the offer to settle, award to the defendant the defendant’s costs in respect of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle.

[am. B.C. Reg. 119/2010, Sch. A, s. 21.]

Considerations of court

(6) In making an order under subrule (5), the court may consider the following:

(a) whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered or served or on any later date;

(b) the relationship between the terms of settlement offered and the final judgment of the court;

(c) the relative financial circumstances of the parties;

(d) any other factor the court considers appropriate.

[13] The plaintiff in this case had strong medical opinions to support her position. The defence position was contrary to the weight of the medical evidence. Although the jury award is less than that offered by the defendant, I am not persuaded that the offer made was one that ought reasonably to have been accepted either on the date that the offer was delivered or any later date. As Madam Justice Adair said in Currie v. McKinnon, 2012 BCSC 1165 at para. 20: “While the purpose of the Rule is to encourage reasonable settlements, parties should not be unduly deterred from bringing meritorious, but uncertain, claims because of the fear of a punishing costs order.”

[14] Second, while the amount recovered is less than the settlement offer, that is rarely a determinative factor, particularly as jury awards are more difficult to predict than judge assessments (Smagh v. Bumbrah, 2009 BCSC 623 at para. 13).

[15] The relative financial circumstances are also a neutral factor in this case. Although Ms. Rutter does have some assets, I am not able to say that losing her costs or paying Ms. Vadnais her costs would not have a dramatic financial effect on Ms. Rutter.

[16] Finally, although the defendant suggests that the history of negotiations between the parties is such that the offer of $50,000 was reasonable in response to the plaintiffs immediately preceding offer of $61,000, I am persuaded by the plaintiff’s response submissions that there were good reasons for her increasing her offer beyond $61,000 “as her retraining exposed her to physical demands of what she could expect to encounter ‘on the ward’ this showed her that her loss was likely to be more than she had previously thought.” The offer of $61,000 was made at the start of her retraining.

[17] In conclusion, having considered the submissions of the parties and the factors set out in Rule 9-1, the plaintiff will have her costs of the action at Scale B until March 15, 2014, a reasonable time in which to consider the defendant’s offer. The parties will bear their own costs thereafter.

"Costs Awards Should Not Punish Plaintiffs From Taking Forward Meritorious Claims"

Written by admin on May 3, 2016. Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9.

In a demonstration of the judicial flexibility that exists under the BC Supreme Court Rules when assessing costs consequences following trials with formal offers in place, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff full costs despite failing to beat a Defense formal settlement offer.
In today’s case (Anderson v. Kozniuk) the Plaintiff was involved in a pedestrian/vehicle collision. Both parties were found partially at fault. The Plaintiff suffered various physical injuries but also advanced a brain injury claim which was not accepted at trial. Prior to trial ICBC issued a formal settlement offer of $125,000. At trial the Plaintiff’s damages were assessed at $78,897 less 30% to reflect the plaintiff’s contributory negligence.
ICBC sought to strip the Plaintiff of post offer costs as a result but the Court exercised its discretion to award the Plaintiff full costs. The Court was influenced by the fact that the costs of the prosecution were significant and an award of costs to ICBC would strip the Plaintiff of the totality of his damages. In reaching this decision Madam Justice Sharma provided the following reasons:

[29] The plaintiff submitted that the award of costs in this case exceeds the total amount of the judgment. In his written submissions, the plaintiff states that “[i]f the court orders that the Plaintiff is to pay costs to ICBC, it means that Mr. Anderson must pay the entire judgment award to ICBC, instead of spending this money on his health condition and prognosis.” I agree that is a significant factor if the court is to be mindful that costs awards should not punish plaintiffs from taking forward meritorious claims, as discussed above.

[30] The plaintiff also says that the defendant was defended and funded by the insurer, whereas Mr. Anderson is impecunious having lost the ability to work, and previous cases have held this is a proper consideration: Smith v. Tedford, 2010 BCCA 302; Hunter v. Chandler, 2010 BCSC 1124 at paras. 23-25; Gregory v. Insurance Corporation of British Columbia, 2010 BCSC 1369 at para. 9; andMartin v. Lavigne at para. 23. I agree. Although there was no evidence before me about Mr. Anderson’s impecuniosity, I have no reason to doubt counsel’s word. Certainly at trial the evidence was consistent with counsel’s statement.

[31] Based on these factors (and all others), the plaintiff submits it would be unfair and unreasonable that the plaintiff be ordered to pay costs to the defendant.

[32] Finally, the plaintiff points to other factors that he says are relevant to the court’s exercise of discretion. He points out that two expert doctors did conclude that he suffered a brain injury. He also says it was not disputed that after the accident he displayed a number of characteristics consistent with having suffered a brain injury, including the fact that he had a flat affect and his behaviour around his family was different, as well as showing increased irritability, frustration and anger. The plaintiff also points out that the brain scans clearly show that he had brain lesions consistent with a brain injury. The plaintiff had increased difficulties with concentration and learning new tasks. Although I made a finding that both his alcohol consumption and anxiety had significant impacts on his life following the accident, the plaintiff suggests he should not be faulted for failing to guess that those factors would be essentially held against him when making a conclusion about whether he had a brain injury or not.

[33] The award of costs is an exercise of the court’s discretion, guided by the legal principles identified above. This is not an exercise of counting up which factors favour which party and doing a mathematical calculation. The court must take into account all of the factors weighed against the circumstances of the case. Remembering that ultimately the result must not impose injustice or unfairness on either party, I exercise my discretion and conclude the normal rule of apportionment does not apply and therefore the plaintiff is entitled to 100% of his costs at trial. Because he has been successful on this application, I also award him the costs of this hearing.