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.
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, denying a Plaintiff double costs after modestly beating a pre-trial formal settlement offer.
In today’s case (Barnes v. Lima) the Plaintiff was injured in a collision and sued for damages. The morning before trial the Plaintiff tabled a $60,000 formal settlement offer. ICBC rejected this offer and proceeded to trial where damages just over $67,000 were assessed. The Plaintiff applied for double costs although the Court did not award these finding it was reasonable not to accept the last minute offer. In reaching this decision Mr. Justice Weatherill provided the following reasons:
 The action arose from injuries sustained by the plaintiff in a motor vehicle accident. It was commenced on September 18, 2012. It was a fast track action commenced under Rule 15-1 of the Supreme Court Civil Rules, B.C. Reg. 168/2009 (the “Rules”). The trial was heard on June 24 to 26, 2014. It lasted 3 days. My Reasons for Judgment were pronounced on July 11, 2014, indexed as 2014 BCSC 1282. The plaintiff was awarded $67,214.19.
 On June 23, 2014, the morning before commencement of the trial, the plaintiff communicated a formal offer to settle the claim for $60,000 plus reasonable disbursements. The offer was stated to be open for acceptance until that same afternoon at 4 p.m. The defendant did not respond to that offer, although it had responded to earlier settlement offers from the plaintiff including by making his own formal offer to settle for $39,651.69 plus funding for 12 active rehabilitation sessions…
 I have considered how the offer compares to the amount ultimately awarded after trial. The award at trial was only $7,214.19 more than the plaintiff’s offer. As matters transpired, it turned out to have been a reasonable offer, although it was a short-fuse offer made on the eve of trial. It should have been made weeks earlier. Be that as it may, it was straight forward and contained no ambiguities. Counsel for the defendant candidly acknowledged that his client had sufficient time before the trial in which to consider it. However, the fact that the award at trial was greater than the offer is not determinative: Ward v. Klaus, 2012 BCSC 99 at para. 46. The reasonableness of a decision not to accept an offer to settle must be assessed not by reference to the award that was ultimately made but rather the circumstances existing when the offer was open for acceptance: Ward, at para. 36.
 On the eve of the trial, the defendant had a legitimate defence to the plaintiff’s claim, particularly his claim for loss of capacity which in his earlier communications to the defendant the plaintiff had indicated was significant. The plaintiff did not break his settlement offer into its components and provided the defendant with no ability to assess how much of it was to compensate the plaintiff for his loss of capacity claim. At the time the offer was communicated, there was a reasonable possibility that the plaintiff would not recover anything for that claim, which ultimately proved to be the case. It was reasonable for the defendant to wish to test the plaintiff’s position that his inability to work overtime at Carter Motors was due to the accident and not to other factors such as his marriage, particularly in the absence of supporting documentation.
 Moreover, most of the plaintiff’s injuries were soft-tissue in nature. He had a pre-existing right shoulder injury. There were live issues regarding whether the plaintiff’s T-4 vertebra fracture had healed and, if so, when, as well as the plaintiff’s credibility relating to the extent that his injuries had affected his life. Parties should not be unduly deterred from bringing meritorious, but uncertain, defences because they fear a punishing costs order: Currie v. McKinnon, 2012 BCSC 1165 at para. 20.
 In addition, the plaintiff provided the defendant with several photographs of the plaintiff’s carpentry skill but gave no explanation for how he intended to rely upon those photographs until after his settlement offer had expired.
 The court has a broad discretion when determining the issue of costs: Ward at para. 33.
 In my view, having considered all of the foregoing circumstances, the offer was not one that the defendant ought reasonably to have accepted.
In a fairly routine exercise of the Court’s discretion, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, ordering a Plaintiff to pay the Defendant’s trial costs for failing to best a pre-trial formal settlement offer in a personal injury claim.
In this week’s case (Wilson v. Honda Canada Financial Inc.) the Plaintiff was involved in a 2009 rear end collision. Fault was not at issue. Although the Court found that there “are serious issues regarding (the Plaintiff’s) credibility” Madam Justice Fitzpatrick concluded the Plaintiff suffered a variety of soft tissue injuries, some of which remained symptomatic on an intermittent basis at the time of trial. Six weeks prior to trial the Defendant made a formal settlement offer of just over $121,000. The Plaintiff sought an award well above this at trial but many of the claimed damages were rejected with the court assessing damages about $25,000 below the formal settlement offer.
The Defendant sought post offer costs and these were granted. In finding that a Plaintiff’s “honest belief” in entitlement to damages does not avoid the costs consequences intended by the Rules of Court, Madam Justice Fitzpatrick provided the following reasons:
 Mr. Wilson argues that he “genuinely believed” that he had incurred a past and future wage loss because he was unable to work for Taja. With respect, it can hardly be the case that honest belief alone will avoid the intended effect of the Rule. This is similar to my rejection of his honest belief as to disability where that belief was not supported by any medical evidence: Reasons, para. 137. As set out in the Reasons, there were numerous difficulties with Mr. Wilson’s arguments regarding Taja, including the lack of proper documentation, lack of medical evidence, and a rejection of his testimony on this issue (see paras. 120-146, 157-163). His claim for future massage therapy of $30,000 was also rejected for the reason that no medical evidence supported that claim.
 Finally, Mr. Wilson’s evidence also suffered from credibility problems particularly where not supported by other credible evidence: Reasons, para. 42. Failure to anticipate credibility issues will also not avoid the operation of the Rule: Gehlen v. Rana, 2011 BCCA 219 at paras. 50-51.
 Mr. Wilson argues that he should not be penalized for “guessing wrong”, citing Fan (Guardian ad litem of) v. Chana, 2009 BCSC 1497. However, it is clear from the comments of the court in that case that there were difficult issues relating to the evidence and how any offer could be dealt with, particularly given the involvement of the public trustee. Similar difficulties do not arise in this case.
 I agree that a party is not required to “guess” about the probable outcome; rather, he or she is required to fairly and objectively assess the evidence intended to be adduced at trial and make a reasoned decision about the relative merits of the claim or defence, having in mind a certain amount of litigation risk. In essence, the party receiving the offer must critically review the merits of the claim in relation to the amount offered. As the court noted in Fan, quoting A.E.:
 Regardless of the merits of the plaintiff’s claim the defendant’s offer to settle cannot be ignored, because to do so would undermine the purpose of the Rule. Having decided to proceed in the face of a not insignificant and ultimately successful offer to settle, the plaintiff cannot avoid some consequences.
 The offer amount, while not approaching the amounts sought by Mr. Wilson, in all likelihood fairly assessed the claims about which there was no dispute and added further amounts for the litigation risk that the more contentious claims would go against the defendants. The offer was, no doubt, also prepared recognizing the substantial cost to both parties if the matter proceeded to trial. It cannot be understated that one of the purposes of the Rule is to avoid costs of proceeding further in the action: Martin, para. 8.
 I conclude that the offer should reasonably have been accepted by Mr. Wilson shortly after it was made and that this factor favours the defendants…
 I conclude that all factors to be considered under Rule 9-1(6) favour the costs award sought by the defendants. Accordingly, Mr. Wilson will recover his assessed costs and disbursements up to April 27, 2013, which is 5 days after the offer was sent in recognition that some reasonable period of time would have been necessary to consider the offer. Thereafter, the defendants will recover their assessed costs and disbursements commencing April 28, 2013. After assessment of these respective amounts, the parties shall set off the awards to produce a net award.
Short and to the point reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, awarding a plaintiff double costs after proceeding to trial and besting a pre-trial settlement offer.
In the recent case (Codling v. Sosnowsky) the Plaintiff was injured in a motor vehicle collision. Prior to trial she made a formal settlement offer for $55,000. ICBC rejected this and proceeded to trial where she was awarded just over $70,000. The Court awarded the Plaintiff double costs for besting the offer. ICBC argued that it was premature to settle costs as the case was under appeal. Mr. Justice Smith quickly disposed of this argument providing the following reasons:
 The defendant also says it is premature to deal with costs because he has filed an appeal and even partial success could reduce the award to an amount below the offer to settle. I do not accept that argument. The duty of this court is to finalize its own judgment. If the Court of Appeal finds that judgment to be in error, the costs consequences will change accordingly.
In confirming that this was an appropriate case for double costs Mr. Justice Smith reasoned as follows:
 On the basis of the evidence that the parties could reasonably have anticipated being called at trial, I find that the plaintiff’s offer represented a reasonable effort to assess her possible recovery. It was one the defendant should have recognized as being within the range of possible awards and ought reasonably to have been accepted, particularly when weighed against the cost of going to trial. I recognize that liability was denied and the plaintiff’s offer made no apparent discount for risk on that issue, but this was a rear-end collision and the defendant had little prospect of success on liability or contributory negligence.
No, this is not a trick question. When can a judge awarding you $20,000 leave you in ‘significant’ debt? The answer is when you fail to beat a formal offer at trial and have ‘loser pays’ costs assessed you. I’ve discussed this reality previously and it was demonstrated yet again in reasons for judgement released last week by the BC Supreme Court, Vancouver Registry.
In last week’s case (Gonzales v. Voskakis) the Plaintiff was injured in a 2008 collison. Prior to trial ICBC provided a formal settlement offer of $69,000. The Plaintiff rejected this and proceeded to have a 12 day trial where she sought in excess of $385,000. The claim was largely unsuccessful with the trial judge awarding just over $20,000 in damages. ICBC asked that the Plaintiff be stripped of post offer costs and that the Defendant be awarded post offer costs and disbrsements. The Plaintiff argued that such a result would “negate her entire judgement and leave her significantly in debt“. Madam Justice Fitzpatrick noted that the underlying “behaviour modification objective” of the Rules of Court override any sympathy to the Plaintiff and levied substantial costs consequences.
The decision is also worth reviewing for the discussion of whether a post offer costs award to a Defendant can include disbursements. The Plaintiff argued the Rules don’t contemplate this but the Court disagreed. In finding disbursements were also encompassed in the Rule Madam Justice Fitzpatrick provided the following reasons:
 Rule 9-1(5) is headed “Cost options”. It is clearly intended to guide the court in deciding what costs award is just. Nevertheless, I do not see that subcategory (d) was intended to limit the discretion of the court to award a defendant’s disbursements in all cases when rewarding a defendant for making a reasonable offer. In many cases, disbursements are significant. In fact, the driving force behind an offer to settle may be the desire to avoid having to pay those disbursements. To limit the discretion of the court in awarding disbursements would defeat the clear intention of the Rule.
 Although Brown J. came to another conclusion in Moore relating to double disbursements under Rule 9-1(5)(b), it appears that Kendall and Skidmore were not in front of her at that time. Therefore, in applying the principles set out in Re Hansard Spruce Mills Ltd.,  4 D.L.R. 590, I do not consider that I am bound by her reasoning.
 I acknowledge that the wording of Rule 9-1(5), in its reference to “disbursements” in subcategory (a) without an accompanying reference to “disbursements” in subcategory (d), is awkward and confounding. In my view, however, the fundamental purpose of the Rule — which, as stated by the Court of Appeal in Kendall and Skidmore, is to compensate for all “costs”, including disbursements — has not changed. One can only hope for some clarity on this issue by possible amendments to Rule 9-1(5).
 In the meantime, I conclude that I have the discretion under Rule 9-1(5)(d) to award the defendant his costs, including disbursements.
 I award such costs, which will include disbursements, in favour of Mr. Voskakis for the period from January 25, 2012 until February 29, 2012.
Update June 18, 2013 – Leave to Appeal the below decision was refused by the BC Court of Appeal
Adding to the list of ‘other factors‘ Courts can consider when deciding whether a formal settlement offer should trigger costs consequences following trial, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, considering the fact that an infant settlement would require Public Trustee approval.
In last week’s case (Nemoto v. Phagura) the Plaintiff was involved in a collision when she was 13. One week before trial ICBC made a formal settlement offer which was $300 greater than the damages she was ultimately awarded at trial. ICBC applied to strip the Plaintiff of her post trial costs and to be awarded theirs. Mr. Justice Smith refused to do so noting that the offer was only 1% greater than the trial award, that there was no competing defence medical evidence to better define risk and lastly that the Public Trustee’s approval would be required which would result in an abandonment. Addressing the last factor the Court provided the following reasons:
 A further complication arose in this case from the fact the plaintiff was 17 years old at the time of trial. That means a settlement based on the formal offer would have required the consent of the Public Guardian and Trustee (“PGT”) pursuant to s. 40 (7) of the Infants Act, R.S.B.C. 1996, c.223. The absence of defence medical evidence may have made it more difficult for plaintiff’s counsel to persuade the PGT of the appropriateness of the settlement.
 In any case, the PGT’s views could not likely have been obtained in the week between the date of the offer and the date of trial, requiring an adjournment of the trial. The plaintiff had to consider the delay that would have been involved in proceeding to trial at a later date in the event, however unlikely, the PGT was not prepared to consent.
 In these circumstances, I cannot say that the offer ought reasonably to have been accepted and I decline to give effect to it in the matter of costs.
Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, stripping Defendants of significant trial costs they otherwise would have been entitled to as a result of relying on an expert witness who crossed the line into advocacy.
In this week’s case (Jampolsky v. Shattler) the Plaintiff was involved in 4 collisions. He alleged he sustained a traumatic brain injury and sought damages exceeding one million dollars at trial. The Court rejected the brain injury claim and found that the Plaintiff sustained modest injuries awarding $15,000 in total damages. Prior to trial ICBC made a formal offer of settlement of $125,000. ICBC sought costs from the time of the offer onward. Mr. Justice Harvey held that normally such an order was appropriate but because of the Defendant’s expert witness’ evidence at trial which crossed into advocacy and further due to the Defendant lawyer’s conduct in the course of a mid-trial application, the Defendant should be stripped of their post offer costs. In coming to this conclusion the Court provided the following reasons:
 As earlier observed, but for the matter of the conduct of defendants’ counsel in the application for withdrawal of the admission and my findings concerning the evidence of Dr. Rees, I would have made an order under Rule 9-5(d) awarding the defendants costs in respect of the proceeding after the date of delivery of the offer to settle.
 The degree to which the evidence of Dr. Rees crossed the boundary from expert opinion into advocacy is a matter which rests at the feet of the defendants. He was their witness and the defendants assume responsibility for his conduct. The Rules require experts to certify that they will prepare their reports and provide testimony in accordance with their duty to assist the court and not assume the role of advocate:Jayetileke, supra.
 In LeClair v. Mibrella Inc., 2011 BCSC 533, Voith J. reduced the amount of costs payable to a successful defendant by 50% to make clear to the defendant that its conduct, in certain respects, was improper. The rebuke in costs was to signal the court’s expectation that parties will expect in a manner that is consistent with the Rules of Court.
 Here, similar to LeClair, I find that the conduct of the defendants, both through the actions of their counsel, Mr. Robinson, and in an expert called on their behalf, Dr. Rees, was sufficiently outside the boundaries of expected behaviour to warrant rebuke via a denial of costs to which the defendants would otherwise be entitled.
 In the circumstances, despite the September Offer and the defendants’ success on the issue of whether the plaintiff suffered an MTBI as a result of any of the four accidents, it is appropriate to deny the defendants the costs of trial leaving intact the plaintiff’s entitlement to costs up to and including the date of the offer to settle but no costs thereafter.
In a fairly typical exercise of a Court’s discretion pursuant to Rule 9-1(5), reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, ordering a Plaintiff to pay a Defendant’s trial costs for failing to accept a reasonable pre-trial formal settlement offer.
In last week’s case (Bevacqua v. Yaworksi) the Plaintiff sustained a fracture wrist in a motor vehicle collision. The fracture went on to cause long term complications
The Plaintiff advanced damages over $500,000. At trial the Plaintiff was awarded $121,000 in damages, $85,000 of which was for non-pecuniary loss. Prior to trial the Defendant tabled a formal offer of $210,000. It is noteworthy that this offer was tabled the last week before trial and was only open for acceptance for two days. The Court found that in these circumstances the offer was reasonable and stripped the Plaintiff of post offer costs and further ordered the Plaintiff to pay the Defendant’s trial costs. In doing so Mr. Justice Curtis provided the following reasons:
 In personal injury claims, in which liability has been admitted, there is in most cases a somewhat predictable range of possible awards. It is to be expected that counsel taking a case to trial will have discussed with their clients the possible range of damages, the evidentiary issues and the risks of and expense of proceeding to trial. It is to be expected therefore that as the trial approaches, counsel and their client have in mind a possible range of recovery and the risks of litigating. Naturally, a plaintiff hopes for an award in the high end of the range and the defendant for an award at the low end.
 The Rule relied upon by the defendant is clearly intended to encourage settlements on the basis of reasonable offers. To be fair, of course, the offer must have been one which ought reasonably to have been accepted, and must have been presented in a reasonable manner and in sufficient time to be properly assessed.
 Clearly, in this case, the plaintiff and her counsel were of the opinion that it was worth taking the chance that she would do better than the offer at trial.
 In my opinion, on my analysis of the medical evidence put forward to support the claim for future care costs, there was little likelihood of an award of $400,000 for future care costs, however, the general damages could have been $100,000 and $15,000 was received for the in trust claim – which suggests the $210,000 new money offer was an offer of something like $100,000 for future care costs.
 In my opinion, a rigorous analysis of the evidence for the claim for costs of future care at the time the offer was open would have lead to the conclusion that the offer was one that ought reasonably to have been accepted. The recovery at trial, particularly for future care costs was markedly less than offered.
 In the circumstances I find that a just result between the parties in this case is an order Emilia Bevacqua recover the costs of her action up to Friday, March 16, at 4:00 p.m. when the offer expired and that the defendant recover costs thereafter, both to be assessed according to Scale “B”.