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.
Tag: Rule 9-1(6)
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 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 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 the Plaintiff 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”.
Reasons for judgement were released this week by the BC Supreme Court, Cranbrook Registry, highlighting the Court’s discretion with respect to costs consequences following a trial in which a pre-trial formal settlement offer was made.
In this week’s case (Russell v. Parks) the Plaintiff was injured when struck by the Defendant’s vehicle while walking in a parking lot. Liability was at issue and ultimately the Plaintiff was found 2/3 responsible for the incident. After factoring this split in the Plaintiff’s assessed damages came to $28,305. Prior to trial ICBC paid more than this amount in Part 7 benefits which are deductible from the damage assessment pursuant to section 83 of the Insurance (Vehicle) Act.
Despite proving partial liability against the Defendant and further proving damages, the Plaintiff’s claim was ultimately dismissed due to the above statutory deduction with Mr. Justice Abrioux providing the following reasons:
 In my view, this reasoning applies to this case, where the application of section 83(5) of the Act results in there being an award of $0 to the plaintiff. Accordingly, the action is dismissed and this should be reflected in the order.
Prior to trial ICBC made a formal settlement offer for $25,000 of ‘new money’. The Court needed to consider what costs consequences ought to flow in these circumstances. In awarding the Plaintiff 75% of pre-offer costs and having each party bear their own post offer costs the Court provided the following reasons:
 The dismissal of the action does not necessarily mean the plaintiff is disentitled to any costs: see McElroy v. Embleton, at para. 10.
 The first question is, putting aside for the moment the issue of Part 7 benefits paid, how should costs be apportioned from the time of the commencement of the action until April 13, 2012? At trial, I found the defendant to be one-third liable for the plaintiff’s loss. ..
 Having considered these authorities, and subject to my findings below regarding the Part 7 benefits, I find the plaintiff is entitled to 75% of his costs up to the date of the settlement offer of April 13, 2012. This reflects the fact that although the amount of time spent on determining liability at the trial was not “minimal”, more time was spent regarding the assessment of damages. This was shown in the medical evidence led, the reports which were obtained and the like. It would be unjust not to exercise my discretion to depart from the default rule referred to in paragraph 26 above in these circumstances.
 The next issue is whether the payment of the Part 7 benefits should affect the award of costs…
 This is not an appropriate case, in my view, to conclude as is submitted by the defendant that the plaintiff should not have proceeded to trial. It was not readily foreseeable to either party what the result was going to be with respect to liability or the quantum of damages. In so far as liability is concerned, I noted at para. 31 of my reasons for judgment that cases dealing with competing duties of pedestrians and operators of motor vehicles are highly fact specific.
 Taking all of these factors into account, I conclude that for the time period up to the defendant’s settlement offer of April 13, 2012, the plaintiff shall be awarded 75% of his costs and disbursements…
 What is the effect of the settlement offer made by the defendant for $25,000 of “New Money” as defined in counsel’s correspondence dated April 13, 2012? The New Money was in addition to the Part 7 benefits already received by the plaintiff. No objection was taken by the plaintiff to the form of the defendant’s offer to settle…
 Upon considering the factors in R. 9-1(6), I do not accept the defendant’s submission that double costs are appropriate. There is no reason for the plaintiff to be subject to a punitive measure. He was not unreasonable in rejecting the settlement offer. The issues at trial made the apportionment of liability quite uncertain. There was also a considerable range in the amount of damages which could have been awarded. The plaintiff’s finances would be greatly impacted if an order for double costs was made against him. In addition, the end result was effectively a nil judgment.
 Taking into account the legal principles to which I have referred and the particular circumstances which exist in this case, I conclude each party should bear their respective costs after the date of the defendant’s offer to settle. The plaintiff has already suffered some financial consequences for proceeding to trial in that I have decided he shall not receive 100% of his costs until the defendant’s offer to settle, but rather 75% of those costs.
UPDATE January 28, 2014 – the BC Court of Appeal overturned the below result in reasons for judgement released today
In an interesting demonstration of the BC Supreme Court’s discretion relating to costs awards following trials where formal settlement offers were made, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, refusing to award ICBC costs where a Jury’s damages amounted to less than 10% of ICBC’s best formal settlement offer.
In the recent case (Paskall v. Scheithauer) the Plaintiff was injured in a 2005 motor vehicle collision. Fault and damages were at issue. Prior to trial ICBC tabled a $700,000 formal settlement offer. The Plaintiff proceeded to trial and sought damages of over $2 million. After a liability split of 80/20 in the Plaintiff’s favour the damages awarded by the jury came to just over $65,000.
Having enjoyed substantial financial victory as compared to their pre-trial offer, ICBC sought post offer costs and disbursements arguing their offer ‘ought to have been accepted’. Mr. Justice Smith disagreed finding, interestingly, that the the Defendant’s failure obtain medico-legal reports despite having the Plaintiff attend two independent medico-legal assessments created an evidentiary vacuum making it impossible for the Plaintiff to conclude that the formal offer was one that reasonably ought to have been accepted. In dismissing ICBC’s sought costs the Court provided the following reasons:
 In order to determine whether an offer is reasonable and ought to be accepted, the plaintiff must be able to consider it in relation to the evidence expected at trial and the apparent range of possible outcomes. In a personal injury case, that exercise usually includes consideration of conflicting medical opinions, along with the possibility and likely consequences of the court preferring certain opinions over others. Plaintiff’s counsel who is relying on an opinion from Dr. X can advise his or her client of the reduction in damages that may result from the court rejecting the evidence of Dr. X and accepting the opinion of Dr. Y that is being relied on by the defendant.
 In this case, the evidence relied on by the plaintiff included opinions of a neuroradiologist, a neuropsychologist, a psychiatrist, an otolaryngologist and two physiatrists. The only experts put forward by the defendant on the question of damages were the occupational therapist dealing with cost of future care and the economist. The defendant served no medical expert opinions, although the plaintiff had attended two independent medical examinations at the request of defence counsel.
 The onus of proof at trial is on the plaintiff. The defendant is under no obligation to produce medical evidence and may rely entirely on cross-examination of the plaintiff and the plaintiff’s medical experts to support an argument that the plaintiff has failed to prove damages. That is what defence counsel chose to do in this case, apparently with great success.
 But the onus of proof at trial is not necessarily relevant to the question of whether an offer made before trial “had some relationship to the claim” or “could be easily evaluated”. In choosing to defend this case in the way he did, the defendant also chose not to provide the plaintiff with evidence on which she could judge the reasonableness of the offers to settle. With the plaintiff’s medical reports in hand, and in the absence of contrary medical opinions, I do not see how reasonable counsel could have recommended acceptance of either of the defendant’s offers or justified such a recommendation to the plaintiff.
 A second factor for consideration set out in R. 9-1(6) is the relationship between the offer and the final judgment. However, the court cautioned against putting too much weight on this factor in cases involving jury trials, given the unpredictability of jury awards: Smagh v Bumbrah, 2009 BCSC 623 at paras 13-14.
 In this case, I find the consideration under R. 9-1(6)(a) to be determinative. I am not only unable to say the offers ought reasonably to have been accepted, but I find that they could not reasonably have been accepted in the context of the evidentiary vacuum in which they were presented. I conclude the plaintiff is entitled to her costs as if the offers had not been made.
Plaintiff Stripped of Post Offer Costs and Disbursements For Failing to Beat Formal ICBC Settlement Offer
In my continued efforts to track the judicial discretion of costs awards following trials with formal settlement offers in place, reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, addressing costs consequences were a jury award was some 25% of ICBC’s best pre-trial formal settlement offer.
In the recent case (Wafler v. Trinh) the Plaintiff was injured in a 2005 collision. Prior to trial ICBC made three formal settlement offers, the final being $222,346. The Plaintiff rejected this offer and proceeded to trial. A jury assessed damages at $70,000 and after appropriate deductions this resulted in judgement of over $53,000. ICBC applied for post offer costs. Mr. Justice Voith did not agree that such a result was appropriate but did strip the Plaintiff of post offer costs and disbursements. Given that the trial lasted 10 days this is a significant financial consequence. In finding this appropriate Mr. Justice Voith provided the following reasons:
 There should be some consequence attached to the plaintiff’s failure to accept the defendant’s third offer of settlement. Having weighed the factors I have identified, I consider that an appropriate result would be to give the plaintiff his costs, including his disbursements, up to December 21, 2011. Each party is to bear their own costs and disbursements after that date. Though every case turns on its own facts and circumstances, the foregoing result aligns with the conclusions arrived at in each of Lumanlan and Khunkhun.
One issue that was unclear under the new BC Supreme Court Rules was weather a formal settlement offer could trigger costs consequences following a liability only trial with quantum of damages still outstanding. Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, answering in no uncertain terms that this was possible.
In this week’s case (Pike v. Dandiwal) the Plaintiff was injured in a 2007 collision. Liability was disputed. A liability only trial was heard and ultimately the Defendant was found wholly at fault for the crash. Prior to trial the Plaintiff issued a formal settlement offer addressing the liability issue. The Defendant provided a global settlement offer with a specific quantum. Having succeeded on the issue of liability the Plaintiff sought double costs.
The Defendant argued that “costs should not be determined until after the assessment of damages because if Mr. Pike does not beat the dollar amount of the defendants’ offer, he should be denied his costs not only in respect of that (second) trial but this trial in which he was successful.“. In rejecting this submission the Court noted that “no caselaw has been provided in support of this submission“. In awarding double costs Mr. Justice Walker provided the following reasons:
 In my view, double costs should be awarded to Mr. Pike. I find it most troubling that defence counsel has not brought me any case law to support his submissions. We are now at 5:05 p.m. I am going to impose a stay on the operation of my judgment for costs for 48 hours to allow the defendants the opportunity to find case law that supports their position, because the last thing I wish to do is commit an error in law.
 If the defendants find that case law and wish to seek to have me reconsider my decision, I will hear it, so long as I receive advice of that by next Wednesday at noon through Trial Scheduling. Otherwise, the order will stand that the defendants pay double costs to Mr. Pike.
The Court then confirmed this result in supplementary reasons once no case-law was produced with the following reasons:
 In my oral Reasons for Judgment dated October 5, 2012, I awarded double costs to the plaintiff. I allowed counsel for the defendants 48 hours to provide me with case law supportive of their costs submissions. On October 11, 2012 counsel for the defendants advised me through Trial Scheduling that no case law was located. Accordingly, the plaintiff is entitled to an award of double costs.
Reasons for judgement were released recently by the BC Supreme Court, New Westminster Registry, addressing costs consequences following a trial where a Plaintiff bested his formal settlement offer.
In the recent case (Delgiglio v. British Columbia (Public Safety and Solicitor General)) the Plaintiff was injured after a RCMP officer ran a red light resulting in a collision. The officer was found negligent at trial and damages of just over $330,000 were assessed.
Prior to trial the Plaintiff provided a formal settlement offer of $175,000. The Plaintiff sought double costs for besting the offer. In finding it appropriate to award double costs Madam Justice Gropper provided the following reasons:
Consideration of the factors
Was the offer one that ought reasonably to have been accepted?
 At the time the offer was made, the parties were approximately two weeks to trial. They had exchanged all the documents, the examinations for discoveries were complete and all the medical reports were exchanged.
 The defendants’ response is that the case reflected complex causation issues involving indivisible injuries.
 I consider this factor to favour the plaintiff’s position. While causation was a significant issue, it was addressed by the plaintiff’s physicians in their medical legal reports. The defendants did not tender any medical legal reports. The defendants had the plaintiff’s medical legal reports at the time the offer was made and was therefore in a position to evaluate the offer in spite of its consistent position in respect of causation.
Relationship of Offer and Judgment
 The plaintiff asserts that the offer of November 15, 2011 contained a meaningful element of compromise. He also argues that the assessment of damages significantly exceeded the compromise of settlement which the plaintiff offered two weeks before the trial. The defendants state no position in respect of this factor. This factor supports the plaintiff’s position.
Relative financial circumstances
 This factor is self evident: the plaintiff is an individual and the defendants have significant resources available. This factor supports the plaintiff’s position.
 The plaintiff raises the defendants’ contact, particularly in regard to the question of liability.
 While I have found that the defendants were entirely liable for the accident, I do not consider that this constitutes a basis for awarding double costs to the plaintiff.
 Based upon the application of the factors referred to in Rule 9-1(6), I find that the plaintiff is entitled to his costs at Scale B up to November 14, 2011, and double costs thereafter. The plaintiff is entitled to his assessable disbursements. The double costs rule does not apply to disbursements.
Last month I discussed the fact that withdrawn formal settlement offers are capable of triggering costs consequences. Reasons for judgement were released recently confirming this fact and awarding a Plaintiff double costs after besting a formal settlement offer which was withdrawn in the course of trial.
In the recent case (Pitts v. Martin) the Plaintiff was injured in a 2008 collision. The injuries included chronic soft tissue injuries and post traumatic stress which limited the Plaintiff in physical tasks.
Prior to trial she provided a formal settlement offer of $100,000. During the course of the trial the Plaintiff withdrew her formal offer. The trial judgement exceeded her offer by $7,500. The Plaintiff asked for double costs. The defendant objected arguing a withdrawn offer could not trigger costs consequences. Mr. Justice Dley disagreed and awarded double costs. In doing so the Court provided the following reasons:
 …I am satisfied that in a case like this, an offer made on May 15th would have given the defendant sufficient time to make a reasoned analysis and respond in a timely fashion. It is not an offer that was made on the eve of the trial commencing, without an opportunity to have it fully considered. It is no impediment that the offer was withdrawn at the close the the Plaintiff’s case. I am satisfied that this is an appropriate case for double costs following the offer…
To my knowledge this judgement is not publicly available. As always, I’m happy to provide a copy to anyone who contacts me and requests one.
Further to my previous posts detailing the potential costs consequences following trials with formal settlement offers in place, reasons for judgement were released last week addressing this topic finding that costs consequences should be applied in an “even-handed” way and further should not unduly deter Plaintiff’s from bringing meritorious, but uncertain claims “because of the fear of a punishing costs order“.
In last week’s case (Currie v. McKinnon) the Plaintiff sustained soft tissue injuries in a collision which substantially recovered within one year. Prior to trial ICBC made a formal settlement offer of $40,000. The Plaintiff rejected this offer and proceeded to trial where he was awarded $22,000 in damages.
ICBC applied for double costs from the time of the offer onward. Madam Justice Adair found that such a result was unwarranted and instead stripped the Plaintiff of post offer costs and disbursements. In doing so the Court provided the following sensible comments:
 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.
 That is not the case here. In my view, Mr. McKechnie, despite his able arguments, simply did not identify for me how the circumstances here were so exceptional as to justify an award of double costs against Mr. Currie. 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…
 Having considered all of the factors in this case, I am not satisfied that it would be appropriate to award the defendants double costs as sought by Mr. McKechnie. I have discussed earlier in these reasons my concerns about how that can have the effect of skewing the procedure in favour of defendants and unfairly pressurize and penalize plaintiffs, and I think that would be the result in this case. Liability was admitted by the defendants. Mr. Currie’s case was not dismissed. Rather, he recovered judgment for non-pecuniary damages in an amount that was greater than what the defendants argued at trial he should recover.
 However, in my view, the defendants’ offer to settle cannot be ignored. That would undermine the purpose behind the rule…
 In my view, therefore, the double costs sought by the defendants are neither a fair nor just result. However, in my view, it is not a fair or just result for Mr. Currie to recover costs after he had had a reasonable opportunity with his counsel to review and consider the defendants’ offer to settle. I would say that by November 30, 2011, Mr. Currie and his counsel had had a reasonable opportunity to review and consider the defendants’ offer and ask any questions they deemed necessary if they thought clarification was necessary.
 In my view, the defendants should not have to pay Mr. Currie’s costs after November 30, 2011. However, I do not think it a fair result that Mr. Currie should have to pay the defendants’ costs after November 30, 20011, given his success ultimately at trial.
 My order then, with respect to costs, is that Mr. Currie will recover his costs and disbursements up to and including November 30, 2011, and that each side bear their own costs thereafter.
Adding to this site’s archived posts of costs consequences following trials with formal settlement offers, reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, addressing this topic following a ‘liability only’ trial.
In this week’s case (Cyr v. Blaine) the Plaintiff was involved in a 2009 collision. The parties agreed that, subject to proving fault, the value of the claim was $60,000. The parties could not agree on fault both arguing the other was to blame. Prior to trial the Plaintiff delivered a formal settlement offer of $50,000.
At trial the Defendant was found fully at fault entitling the Plaintiff to the agreed damages of $60,000. Mr. Justice Saunders found that it was appropriate to award the Plaintiff post offer double costs in these circumstances. In doing so the Court provided the following reasons:
 The defendants say that it was reasonable for them to try the case on the basis of their theory that the plaintiff had a duty to look to her left as she passed by the front of the vehicle that had stopped for her in the intersection. But even if the plaintiff had been under an obligation to anticipate that there might be another vehicle in the same lane as the stopped vehicle, attempting to pass that stopped vehicle on the left, the defendants had no evidence that, by the time she would have been able to see the defendants’ vehicle, she would have been able to bring her own vehicle to a stop in time to avoid the collision, given the defendants’ speed.
 The defendant Mr. Blaine passed a stopped vehicle, on its left, when he was in the same lane as that vehicle. As I found, it ought to have been apparent to Mr. Blaine from the opening in the divider separating eastbound and westbound traffic that he was passing through an intersection, and that cars travelling in his direction had stopped to let a vehicle or vehicles through the intersection. By the time the subject offer was delivered, it ought to have been apparent to the defendants that they would be found wholly or at least substantially liable for the accident.
 Given that damages had been agreed at $60,000, the plaintiff’s $50,000 offer represented a discount of roughly 17%, or, to put it another way, roughly a 50% chance of a finding of one-third contributory negligence on the plaintiff’s part. It was an offer that reasonably ought to have been accepted upon delivery.
 The plaintiff, I find, is entitled to double costs of all steps taken after the offer was delivered.