Very important reasons for judgement were released recently by the BC Court of Appeal addressing a key factor under Rule 37B.
By way of brief introduction Rule 37B is the current rule dealing with formal settlement offers. (Rule 37B will be replaced with Rule 9 next month but the new rule uses language that is almost identical to Rule 37B).
The Court can take formal settlement offers into account when awarding a party costs. One factor the Court can consider in deciding whether to award costs or increased costs under Rule 37B is “the relative financial circumstances of the parties“.
In most personal injury lawsuits Defendants are insured such that they don’t have a significant financial stake in the outcome of the trial. BC Supreme Court judges have been conflicted in whether insurance is a relevant consideration when viewing the financial circumstances of the parties. Today the BC Court of Appeal addressed this issue for the first time.
In today’s case (Smith v. Tedford) the Plaintiff was injured in a motor vehicle collision. Before trial the Plaintiff made a formal settlement offer. Several days into trial the Defendant accepted the offer. The parties could not agree on the costs consequences. The trial judge awarded the Plaintiff costs to the time the offer was made and double costs for the time spent at trial. (You can click here to read my post summarizing the trial judge’s reasons). In doing so the Judge considered the fact that the Defendant was insured with ICBC as relevant to his ‘financial circumstances“.
ICBC, on behalf of the Defendant, appealed arguing that the Judge was wrong to consider insurance. In a welcome development the BC Court of Appeal found as follows:
While I recognize arguments over the implications of a defendant’s insurance coverage being considered in relation to an award of costs may go back and forth, like the judge I consider precluding such from consideration renders an assessment of the parties’ relative financial circumstances, at least in a case of this kind, very artificial indeed. Clearly, with ICBC having assumed the defence, the financial ability to defend was much greater than the financial ability to prosecute, and that is of no small importance to considering whether and to what extent the financial circumstances of the parties, relative to each other, bear on an award of costs where, as here, there has been an offer of settlement made ten days before a trial for the assessment of personal injury damages which was not accepted until the seventh day of the trial.
Tag: smith v. tedford
(Please note the case discussed in this post was upheld by the BC Court of Appeal in June, 2010. You can click here to read my post discussing the BCCA decision)
When a party beats a formal settlement offer at trial in the BC Supreme Court the existence of the offer can be brought to the courts attention and the Court can then award or deprive a party of Costs as permitted under Rule 37B.
In determining costs consequences Courts have discretion and are to consider various factors as set out in Rule 37B(6). One of these factors requires the court to consider ‘the relative financial circumstances of the parties‘. One of the matters still being worked out by BC Courts under Rule 37B is whether a party being insured is a relevant factor when weighing the financial circumstances of the parties.
Today reasons for judgement were released by the BC Supreme Court, Chilliwack Registry addressing this matter. In today’s case (Smith v. Tedford) the Plaintiff made a settlement offer. The defendant did not immediately accept and proceeded to trial. Several days into trial the Defendant accepted the offer. At issue was what costs the Defendant should pay the Plaintiff.
The Defendant was apparently insured with ICBC. In arguing what costs consequences should follow the Defendant submitted that the fact insurance was in place was not a relevant consideration. In asking the court to consider the ‘relevant financial circumstances of the parties‘ the defendant put forward an affidavit setting out her ‘modest circumstances‘.
Mr. Justice Grist rejected this argument and held that the existence of insurance was relevant and could properly be considered by the Court. Specifically Mr. Justice Grist reasoned as follows:
 Here, I think the consideration stipulated in Rule 37B(6)(c), “the relative financial circumstances of the parties,” also has a bearing. The plaintiff has very limited financial resources and the personal defendant had the advantage of a defence conducted by her automobile insurer. This fact should not constantly put the defence at a disadvantage on costs but, in my view, it is particularly relevant when a late acceptance of an outstanding offer has required the plaintiff to submit to a less certain and potentially prohibitively costly mode of trial.
 Counsel for the defence argues that insurer’s conduct of the case is not a relevant feature and cites Bailey v. Jang,  B.C.J. No. 1952, in this regard. In Bailey the court held that the fact a defendant’s case was conducted by the defendant’s insurer was irrelevant to the Rule 37B(6)(c) consideration of relative financial circumstances. Almost contemporaneous to this decision, however, the issue was independently considered in Radke v. Parry,  B.C.J. No. 1991. In the Radke case, the court awarded the plaintiff double costs for a trial ultimately settled by the exchange of a further plaintiff’s offer and the defendants’ acceptance of the offer, in circumstances where the plaintiff had earlier made a much more modest initial offer. The relevant comment (at para. 42) was as follows:
…The defendants, represented by ICBC, had substantially greater resources to finance a trial than the individual plaintiff. Had the defendants accepted the plaintiff’s initial reasonable offer, the plaintiff would not have had to incur the significant costs associated with nearly two weeks of trial.
 I choose to follow Radke in this regard. The ability to have a case advanced by experienced and well funded counsel is, to my mind, a resource that should be taken into account in exercising the judicial discretion stipulated under the new Rule. As an example of how the obvious intent of the Rule can be perverted if the consideration is made independent of insurance coverage, here counsel for the defendant produced an affidavit speaking of her modest circumstances. She, like the plaintiff, is a young person employed at near minimum wage. This was particularly hard to accept as a relevant consideration after the 6-day course of this abbreviated trial, during which the Insurance Corporation twice had separate counsel appear to argue issues that might easily have been dealt with by the two trial counsel appearing on the defendants’ behalf.
 The appropriate order of costs is to award costs of the action to the plaintiff with the cost of the trial to be assessed as double costs, all at Scale B.
It appears that this interpretation may be gaining favor with BC Courts and hopefully this trend continues. As always I will continue to report on these cases as they come to my attention.
If you are injured in BC through the fault of another and advance a tort claim you have a duty to mitigate your damages. What this means is you have a duty to take reasonable steps to minimize your losses. For example, if you are capable of getting back to work you ought to do so, or if your doctor prescribes a rehabilitation program you should take reasonable steps to follow this advice.
If you fail to mitigate your damages the value of your damages may be reduced accordingly. In other words, if the Court finds that you unreasonably failed to follow a rehabilitation program and doing so would have improved your injuries by 50% the value of your Injury Claim could be reduced by 50%.
But what if you can’t afford to follow your doctors advice? What if the medications prescribed are too expensive or if the physiotherapy costs are beyond your budget, surely this can’t amount to a failure to mitigate, can it? Unfortunately it can if you have ICBC No Fault Benefits available to you and you fail to apply for and receive these. Section 83(2) of the Insurance (Vehicle) Act reads as follows:
(2) A person who has a claim for damages and who receives or is entitled to receive benefits respecting the loss on which the claim is based, is deemed to have released the claim to the extent of the benefits.
What this means is that if you could recieve ICBC rehabilitation benefits and fail to apply for these the person that injured you can successfully argue that you failed to mitigate your damages.
Reasons for judgement were released today (Smith v. Tedford) highlighting this fact. In this case Mr. Justice Grist made the following observations:
 Once pled as an issue by the defendant, damages will be limited if the defendant can show the plaintiff failed to take steps a reasonable person would have taken to mitigate or lessen the loss. In the case of a personal injury trial, this would include recommended treatment or therapy if pursuing the treatment is a reasonable course in the circumstances and can be proven to likely have had efficacy.
 In my view, the financial circumstance of the plaintiff falls into the overall consideration of reasonableness. If the plaintiff is of modest means, the expensive therapy may be a significant factor. The fact that such a plaintiff has been denied coverage for the therapy under the universal motor vehicle coverage provided under Part 7, is in my view, a factor for consideration when failure to mitigate of this sort is alleged. This coverage, as being ordinarily available to those injured in motor vehicle collisions, may well be assumed by a jury hearing such a case. Therefore, where there has been a request for coverage, the response becomes relevant.
 This is not a case of putting ICBC on trial. It is a matter of responding to a defence issue by reference to the plaintiff’s resources and whether it was reasonable to pursue the recommended treatment. Further, a full response to the issue is not necessarily made simply by the Plaintiff indicating a lack of resources in her evidence. As here, and as it happens in many cases, the plaintiff’s credibility is challenged and the ability to rely on confirmation is significant. Further, this is not a matter of determining Part 7 coverage. That is an issue for proceedings after a jury verdict and is quite independent, in my view, of this question.
In another ICBC Injury Claim released today (Job v. Blankers) Madam Justice Ker of the BC Supreme Court penalized a plaintiff for failing to mitigate her damages. In this case the Plaintiff was found to have mild to moderate soft tissyue injuries and the non-pecuniary loss was valued at $25,000. This award was then reduced by 10% for failure to mitigate. In coming to this conclusing the Court made the following analysis:
 In Antoniali v. Massey, 2008 BCSC 1085, Mr. Justice Preston addressed the issue of mitigation of damages at ¶29-50. In that case, the defendants established that the plaintiff unreasonably failed to embark on an exercise program under the guidance of a personal trainer to rehabilitate herself and reduce or eliminate the continuing effect of her injuries.
 The decision in Antoniali provides a helpful framework for assessing whether the defendant has established that the plaintiff has failed to mitigate her damages in this case. In order then to conclude that Ms. Job’s damages should be reduced by the application of the principle that a plaintiff has a positive duty to mitigate her injuries, adapting that framework to the circumstances of the present case, I would have to find that the defendant has established:
1. that a program of massage, physiotherapy and chiropractic intervention at a stage earlier than that undertaken by the plaintiff would have reduced or eliminated the effect of the injuries;
2. that the reasonable plaintiff in Ms. Job’s circumstances would have followed such a program;
3. that Ms. Job unreasonably failed to follow such a program and;
4. the extent to which Ms. Job’s damages would have been reduced if she had followed such a treatment program.
 Applying those factors to the circumstances of this case, I am satisfied the defence has established that Ms. Job failed to mitigate her injuries and symptoms. Although Ms. Job may have had some financial reasons for failing to follow through on her doctor’s referrals, it appears from her evidence that her refusal to sign the appropriate documentation that ICBC sought contributed to her difficulties in that regard.
 Dr. O’Neill’s evidence that the earlier treatment begins after an accident, the better the prognosis for the patient, and his observation that the plaintiff’s recovery may have been better had she attended earlier, satisfies me that had Ms. Job engaged in earlier treatment of her injuries as directed by her family physician in August and October 2007, she would have likely reduced the disability that she has experienced as result of the injuries.
 I find that the plaintiff failed to take reasonable steps to mitigate the physical effects of the injuries sustained in the collision by failing to undertake the treatment regime recommended by her physician at the time the recommendation was made. On the evidence of Dr. O’Neill, this was likely an impediment to achieving an earlier recovery. Ms. Job had an obligation to assist in her recovery, even if it meant some initial financial hardship in terms of ability to pay for the treatments. The burden of establishing a failure to mitigate is on the defendant. I find that the defendant has met the onus in this case and has established that the plaintiff did not take all reasonable steps towards assisting in her recovery by failing to engage in treatment at the time her physician recommended she do so.
 Accordingly, I reduce her award for non-pecuniary damages by 10% to reflect her failure to mitigate those damages in these circumstances.
 In the end, there will be an award of $22,500 ($25,000 less 10% for failure to mitigate) in non-pecuniary damages.