Working out the Kinks – More on Rule 37B and BC Injury Cases

Very important reasons for judgment were released today (AE v. DWJ) by the BC Supreme Court giving more interpretation to Rule 37B.  (Click here to read my previous posts discussing this rule.)
Rule 37B is still relatively new and the courts have not come up with a consistent application of this rule.  Today’s case takes this rule in a potentially new direction that can make access to justice a little less costly and risky for Plaintiff’s advancing injury claims.
In today’s case the Plaintiff was awarded damages of $348,075 after taking into account contributory negligence.  After statutory deductions the judgment in the Plaintiff’s favor was less than the Defendant’s formal offer of settlement.
The Defendant’s lawyer applied to court for an order that “the defendant should receive his costs (After the date that they made their formal settlement offer)”.
In declining to make this order Mr. Justice Goepel stated that under Rule 37B “the court cannot award costs to the defendant (where the defendant beats their formal settlement offer at trial) but is limited to depriving a party of costs or awarding double costs“.  This is the first case I’m aware of interpreting Rule 37B in this fashion.
Below I reproduce the highlights of Mr. Goepel’s reasoning:

Judicial Discretion In Awarding Costs

[48] The discretion a Supreme Court judge has in awarding costs was summarized in Stiles v. British Columbia (Workers’ Compensation Board) (1989), 38 B.C.L.R. (2d) 307 at 310, 39 C.P.C. 2(d) 74 (C.A.):

The power of a Supreme Court judge to award costs stems from s. 3 of the Supreme Court Act which confirms that the judges of the Supreme Court have the inherent powers of a judge of superior court of record.  The power to award costs is governed by the laws in force in England before 1858 and by the enactments, including the Rules of Court, affecting costs made in British Columbia since 1858.  Generally, the decisions on costs, including both whether to award costs, and, if awarded, how to calculate them, are decisions governed by a wide measure of discretion.  See Oasis Hotel Ltd. v. Zurich Ins. Co., 28 B.C.L.R. 230, [1981] 5 W.W.R. 24, 21 C.P.C. 260, [1982] I.L.R. 1-1459, 124 D.L.R. (3d) 455 (C.A.).  The discretion must be exercised judicially, i.e. not arbitrarily or capriciously.  And, as I have said, it must be exercised consistently with the Rules of Court.  But it would be a sorry result if like cases were not decided in like ways with respect to costs.  So, by judicial comity, principles have developed which guide the exercise of the discretion of a judge with respect to costs.  Those principles should be consistently applied: if a judge declines to apply them, without a reason for doing so, he may be considered to have acted arbitrarily or capriciously and not judicially.

[49] In Cridge, Lowry J.A. noted the right of the Lieutenant Governor in Council to restrict the exercise of a Supreme Court judge’s discretion in awarding costs at para. 23:

While, subject to abiding by established principles, a Supreme Court judge has a broad discretion in awarding costs, it remains open to the Lieutenant Governor in Council in promulgating the Rules of Court to restrict the exercise of that discretion as may be appropriate where it is thought that to do so will achieve a desired objective.  The purpose of Rule 37 is to encourage the settlement of litigation through prescribed consequences in costs as in sub-rule (24).  Given that the sub-rule provides for the litigants’ entitlement to costs while affording no discretionary alternative, I consider it clear that there is no room for judicial discretion where sub-rule (24) applies.

[50] A trial judge cannot impose cost sanctions that are not authorized by the Rules.  An example of an ill fated attempt to do so is Kurtakis v. Canadian Northern Shield Insurance Co.(1995), 17 B.C.L.R. (3d) 197, 45 C.P.C. (3d) 294 (C.A.).  In Kurtakis, the trial judge awarded the plaintiff three times special costs.  The Court of Appeal reversed noting at para. 9 that there was “no statutory authority for such an order … and therefore no basis upon which such an order could be made.”

[51] Rule 37B has returned to judges a broad discretion in regards to costs orders arising from an offer to settle.  The discretion is however not unlimited and must be exercised within the parameters set out in the Rule.  Rule 37B(5) dictates the cost options open to a judge when an offer to settle has been made.  A judge can either deprive the party, in whole or in part, of costs to which the party would otherwise be entitled in respect of steps taken in the proceeding after the date of the delivery of the offer to settle or award double costs of some or all of the steps taken in the proceeding after the delivery of the offer to settle.  As noted in Baker, the section is permissive and a judge is not compelled to do either.

[52] What a judge cannot do, however, in my respectful opinion, as a result of an offer to settle, is to order costs to a defendant where the offer to settle was in an amount greater than the judgment.  While that cost option had existed since the time of the 1890 rules, either as an exercise of the court’s discretion or because it was mandated by the terms of the rule, it is not an option available under Rule 37B.  The drafters of Rule 37B(5) have removed that option and presumably determined that the potential deprivation of costs to which a plaintiff would otherwise be awarded is a sufficient incentive for plaintiffs to settle litigation.  As noted in Cridge, the Lieutenant Governor in Council has the right to limit the court’s discretion.  Accordingly, I hold that pursuant to Rule 37B(5) the court cannot award costs to the defendant but is limited to depriving a party of costs or awarding double costs

[53] The defendant does not seek double costs in this case.  It would be a rare case that a plaintiff who recovers damages would face the sanction of double costs. I would expect those sanctions would be limited to situations in which a plaintiff’s case is dismissed or when the plaintiff was awarded more than its offer to settle.

If this precedent holds then Plaintiffs will face fewer financial risks when proceeding to trial.  The costs consequences of going to trial and losing (not beating an ICBC formal offer of settlement) can be prohibitive and today’s case may lead the way to better access to justice in British Columbia for the victims of others negligence.

access to justice, AE v. DWJ, costs consequences of trial, formal offers, icbc settlement advice, Rule 37B, trial costs

Comments (50)

  • I just want to mention I am all new to weblog and actually loved your web page. Almost certainly I’m likely to bookmark your site . You actually come with impressive stories. Kudos for sharing your web page.

  • magnificent put up, very informative. I’m wondering why the other specialists of this sector don’t realize this. You should proceed your writing. I am sure, you’ve a great readers’ base already!

  • Great – I should definitely pronounce, impressed with your website. I had no trouble navigating through all tabs and related information ended up being truly simple to do to access. I recently found what I hoped for before you know it at all. Reasonably unusual. Is likely to appreciate it for those who add forums or anything, website theme . a tones way for your client to communicate. Nice task.

  • I conceive this internet site has some rattling wonderful information for everyone. “He is able who thinks he is able.” by Buddha.

  • Terrific work! This is the type of info that should be shared around the internet. Shame on the search engines for not positioning this post higher! Come on over and visit my web site . Thanks =)

  • Thanks for a marvelous posting! I actually enjoyed reading it, you are a great author.I will make sure to bookmark your blog and definitely will come back from now on. I want to encourage you continue your great work, have a nice evening!

  • Thanks a bunch for sharing this with all of us you actually know what you are talking about! Bookmarked. Please also visit my web site =). We could have a link exchange agreement between us!

  • Good – I should certainly pronounce, impressed with your website. I had no trouble navigating through all tabs and related information ended up being truly easy to do to access. I recently found what I hoped for before you know it in the least. Reasonably unusual. Is likely to appreciate it for those who add forums or something, website theme . a tones way for your customer to communicate. Nice task.

  • I am really enjoying the theme/design of your website. Do you ever run into any browser compatibility issues? A number of my blog visitors have complained about my site not operating correctly in Explorer but looks great in Chrome. Do you have any tips to help fix this problem?

  • I would like to show my affection for your kind-heartedness giving support to men and women who absolutely need help on that question. Your personal dedication to getting the solution along ended up being remarkably helpful and has consistently made professionals like me to arrive at their endeavors. Your entire valuable key points can mean a whole lot a person like me and far more to my peers. Regards; from all of us.

  • Nearly all of whatever you point out is astonishingly legitimate and it makes me ponder the reason why I hadn’t looked at this with this light previously. This particular piece truly did turn the light on for me personally as far as this subject matter goes. Nonetheless there is 1 point I am not too comfy with so whilst I attempt to reconcile that with the core idea of your issue, allow me observe what all the rest of the visitors have to point out.Well done.

  • Hey there would you mind letting me know which hosting company you’re working with? I’ve loaded your blog in 3 completely different browsers and I must say this blog loads a lot faster then most. Can you suggest a good internet hosting provider at a fair price? Thanks a lot, I appreciate it!

  • My brother suggested I might like this web site. He was entirely right. This post truly made my day. You cann’t imagine simply how much time I had spent for this information! Thanks!

  • Thanks for your posting. My spouse and i have continually noticed that almost all people are eager to lose weight because they wish to show up slim in addition to looking attractive. On the other hand, they do not constantly realize that there are more benefits for losing weight as well. Doctors state that overweight people are afflicted by a variety of diseases that can be instantly attributed to their excess weight. The good news is that people who sadly are overweight as well as suffering from a variety of diseases can reduce the severity of the illnesses by losing weight. You are able to see a gradual but notable improvement in health while even a minor amount of losing weight is accomplished.

  • Thanks for this article. I would also like to mention that it can possibly be hard if you find yourself in school and simply starting out to initiate a long credit history. There are many learners who are simply trying to pull through and have a good or good credit history can often be a difficult element to have.

  • I carry on listening to the news speak about getting boundless online grant applications so I have been looking around for the most excellent site to get one. Could you tell me please, where could i acquire some?

  • I’m not sure where you’re getting your info, but great topic. I needs to spend some time learning more or understanding more. Thanks for great info I was looking for this info for my mission.

  • I was very pleased to find this internet-site.I needed to thanks on your time for this glorious learn!! I definitely having fun with every little little bit of it and I have you bookmarked to take a look at new stuff you blog post.

  • It’s really a nice and useful piece of information. I am glad that you simply shared this helpful information with us. Please stay us up to date like this. Thanks for sharing.

  • I’ve been browsing on-line more than 3 hours lately, but I never found any attention-grabbing article like yours. It¡¦s beautiful value enough for me. In my view, if all website owners and bloggers made good content as you probably did, the net will likely be a lot more useful than ever before.

  • I believe that avoiding prepared foods could be the first step to be able to lose weight. They can taste very good, but refined foods currently have very little nutritional value, making you eat more in order to have enough energy to get through the day. If you’re constantly feeding on these foods, moving over to cereals and other complex carbohydrates will make you to have more vigor while ingesting less. Great blog post.

  • Along with every thing that appears to be building inside this particular subject matter, all your opinions are very exciting. Having said that, I am sorry, because I do not give credence to your whole strategy, all be it exciting none the less. It looks to us that your remarks are generally not completely justified and in fact you are yourself not even wholly confident of your point. In any event I did appreciate reading through it.

  • I was wondering if you ever considered changing the structure of your site? Its very well written; I love what youve got to say. But maybe you could a little more in the way of content so people could connect with it better. Youve got an awful lot of text for only having one or 2 images. Maybe you could space it out better?

  • You have noted very interesting points ! ps decent internet site . “Great opportunities to help others seldom come, but small ones surround us every day.” by Sally Koch.

  • I do agree with all the ideas you have presented in your post. They’re really convincing and will definitely work. Still, the posts are very short for newbies. Could you please extend them a bit from next time? Thanks for the post.

  • Yet another issue is that video gaming has become one of the all-time largest forms of recreation for people of nearly every age. Kids enjoy video games, plus adults do, too. The particular XBox 360 is among the favorite games systems for folks who love to have a huge variety of games available to them, in addition to who like to relax and play live with some others all over the world. Many thanks for sharing your notions.

  • I’ll immediately grab your rss as I can not find your email subscription link or e-newsletter service. Do you have any? Please let me understand so that I could subscribe. Thanks.

  • Nice post. I be taught one thing more difficult on totally different blogs everyday. It’ll always be stimulating to read content material from different writers and practice a little something from their store. I’d desire to make use of some with the content on my weblog whether or not you don’t mind. Natually I’ll provide you with a hyperlink in your web blog. Thanks for sharing.

  • I’m not that much of a online reader to be honest but your sites really nice, keep it up! I’ll go ahead and bookmark your website to come back down the road. Cheers

  • Aw, this was a really nice post. In concept I would like to put in writing like this additionally – taking time and precise effort to make an excellent article… but what can I say… I procrastinate alot and not at all seem to get one thing done.

  • Nice read, I just passed this onto a colleague who was doing some research on that. And he actually bought me lunch as I found it for him smile Therefore let me rephrase that: Thanks for lunch!

  • hey there and thanks to your information – I have certainly picked up something new from proper here. I did on the other hand expertise a few technical points the use of this web site, since I skilled to reload the website a lot of instances prior to I could get it to load correctly. I had been thinking about if your web hosting is OK? No longer that I am complaining, however slow loading instances instances will very frequently impact your placement in google and could damage your high-quality ranking if ads and ***********|advertising|advertising|advertising and *********** with Adwords. Anyway I am including this RSS to my email and can glance out for much extra of your respective fascinating content. Make sure you replace this again soon..

  • of course like your website but you have to check the spelling on quite a few of your posts. A number of them are rife with spelling issues and I find it very troublesome to tell the truth nevertheless I’ll certainly come back again.

  • It is the best time to make some plans for the future and it’s time to be happy. I have learn this post and if I may I want to recommend you some fascinating issues or suggestions. Maybe you could write next articles referring to this article. I wish to learn more issues approximately it!

  • I was wondering if you ever considered changing the page layout of your website? Its very well written; I love what youve got to say. But maybe you could a little more in the way of content so people could connect with it better. Youve got an awful lot of text for only having 1 or two images. Maybe you could space it out better?

Comments are closed.

Contact

If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

Disclaimer