Author: Glenn

Plaintiff Receives Full Costs Despite Receiving Court Award Less Than ICBC’S Offer

In Goguen v. Maddalena, the Plaintiff was injured in a motor vehicle accident, and consequently sued for various types of damages, including pain and suffering, diminished earning capacity, future care, and an in-trust claim.

 

Prior to trial, ICBC’S lawyer made a formal offer to settle in the amount of $175,000.00. At trial, the Plaintiff was awarded $174,360.84 in total damages.

 

Counsel for the Plaintiff, as well as ICBC’S lawyer, could not agree on what amount of costs should be payable by the Defendant. Counsel for the Plaintiff argued that the Plaintiff should be entitled to full costs throughout, whereas ICBC’S lawyer argued that the Plaintiff should pay the Defendant’s costs that were incurred after the date of the final formal offer to settle, or in the alternative, that both parties bear their own costs after the date of the final formal offer to settle.

 

When the amount of damages awarded to a Plaintiff does not exceed ICBC’S final formal settlement offer before trial, the Court typically does not award full costs to the Plaintiff. In the case at bar, the Court made an exception, given that the amount of damages received by the Plaintiff was only marginally less than ICBC’S final formal offer to settle.

 

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

 

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

 

In rendering its’ decision on the costs issue, the Court considered the four factors in Rule 9-1(6) of the Supreme Court Rules :

 

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

 

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

 

(c) the relative financial circumstances of the parties;

 

(d) any other factor the court considers appropriate.

 

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

Court Compels ICBC To Disclose Relevant Policy Of Insurance

When the amendments to the British Columbia Supreme Court Civil Rules came into effect on July 1, 2010, there was a new rule that required parties to disclose the limit of the insurance coverage available to them. Such disclosure is intended to assist parties in assessing their prospects of recovery upon judgment, as well as to encourage settlement of claims where the limits of insurance coverage would play a factor when weighing settlement offers.

 

Rule 7-1(3) of the British Columbia Supreme Court Civil Rules states that, with respect to an insurance policy:

 

(3) A party must include in the party’s list of documents any insurance policy under which an insurer may be liable

 

(a) to satisfy the whole or any part of a judgment granted in the action, or

 

(b) to indemnify or reimburse any party for any money paid by that party in satisfaction of the whole or any part of such a judgment.

 

In Sinnett v. Loewen, the Plaintiff was injured in a motor vehicle collision, and consequently sued for damages. Prior to Examinations for Discovery and the setting of a trial date, counsel for the Plaintiff and ICBC’S lawyer exchanged Lists of Documents, as required under the British Columbia Supreme Court Civil Rules.

 

Counsel for the Plaintiff was not content with the extent of production of the Defendant’s documentation respecting insurance coverage, necessitating an interlocutory application before a Master seeking unredacted versions of any insurance policies and insurance coverage that the Defendant may have. ICBC’S lawyer opposed the application, and sought a dismissal, with an award of special costs.

 

In citing the British Columbia Court of Appeal case of Meghji with respect to judicial consideration of Rule 7-1(3), Master Bouck commented :

 

[15] In its decision, the Court of Appeal takes a broad view of what information should produced pursuant to the above-cited rule. For example, such information is not limited to an actual document detailing a policy of insurance but rather encompasses information about “insurance coverage.”

 

[16] Furthermore, that Court found that all Supreme Court Civil Rules ought to be interpreted in such a fashion as to encourage the settlement of claims: para. 129. Thus, by disclosing their respective insurance coverages (including any UMP coverage available to the plaintiff), the parties in this case will be in a more informed position to reach a negotiated settlement.

 

[17] … there is an obligation on the defendant to list any such documents. If no such document appears on the defendant’s list, the plaintiff may choose to pursue the existence of the documents at an examination for discovery. If listed, the issue of a particular document’s relevancy and thus its admissibility into evidence can still be challenged by the defendant at trial: SCCR 7‑1(4).

 

[18] In the result, there will be an order that the defendant include in his list of documents any insurance policy or certificate of insurance or any other type of document that discloses insurance coverage under which an insurer may be liable to satisfy in whole or any part of a judgment granted in this action or to indemnify or reimburse the defendant for any money paid by the defendant in satisfaction of the whole or any part of such judgment.

 

What Do ICBC’S New Changes Mean For You If You Have Been Injured In A Motor Vehicle Accident ?

Since the news was announced by the provincial government that major changes are coming with respect to ICBC payouts for injury claims, most notably a cap of $5,500.00 for pain and suffering on minor injury claims, I have had many calls from clients wondering how their current claims will be affected.

 

The new changes are set to take effect in the form of legislation on April 1, 2019. Any motor vehicle accident occurring prior to that time will not be affected by the new cap.

 

It is interesting to note that, even under the new system, if you elect to pay an additional $1,300.00 per year in insurance premiums on top of your regular premiums, then you would be entitled to a cap of $75,000.00 for pain and suffering, even if your injuries are “minor” in nature.

 

It is worthy to note that the new cap will not affect awards for income loss or costs of medical treatment.

 

What is a “minor” injury ?

 

However, it remains to be seen as to what constitutes a “minor” injury. It is expected to include strains, sprains, soreness, bruising, as well as anxiety and stress arising from an accident. It is expected that ICBC itself will develop the definition of “minor”, and that a medical professional, not ICBC, will determine whether the nature of an injury is classified as “minor”. Who this “medical professional” will be, however, remains to be seen.

 

A driving force behind the new legislation is the government’s desire to have claimants not seek legal representation, which in turn requires ICBC to appoint counsel as well to defend claims. 24% of ICBC’S alleged financial woes are accounted for by legal costs.

 

More serious injuries, such as concussions, fractures, ligament tears, nerve damage, and other forms of objective injuries will not fall within the purview of the cap.

 

If there is a dispute as to the classification of an injury as “minor”, a claimant will be required to submit their dispute to the B.C. Civil Resolution Tribunal. Pursuant to section 20 of the Civil Resolution Tribunal act, however, the general rule is that claimants are to represent themselves. This is further proof of the government making every effort possible to see that claimants do not get lawyers to represent them.

 

Other notable changes include :

 

An increase from $150,000.00 to $300,000.00 for accident benefits in the form of medical care and recovery costs; this is a hardly a concession, as it is quite rare that any claimant would even require up to the original amount of $150,000.00.

 

An increase from $300.00 weekly to $740.00 for weekly for interim income loss compensation. Although it may be more helpful to claimants on an interim basis, this will not make any difference to the amount of money ultimately paid out to a claimant for the balance of income loss at settlement time.

 

An increase to the amounts covered for treatment costs, so that claimants don’t have to pay as much of their own money for “user fees” along the way. “User fees” are reimbursed at settlement time anyways, so this can hardly be seen as a major improvement for claimants, who in many cases already have assistance with “user fees” on an interim basis prior to settlement time.

 

An increase in homemaker benefits from $145.00 per week to $280.00 per week. ICBC does not always accommodate such requests in any event, and often insists on occupational therapists visiting your home and asking a wide variety of questions, which many claimants find invasive.

 

Once the new law is passed on April 1, 2019, rest assured that there will be a court challenge brought by the Trial Lawyers Association of British Columbia. There is some legal precedent with respect to challenging legislation that seeks to strip motor vehicle accident victims of their rights. When the Alberta government passed similar legislation, it was challenged in court, where the legislation was deemed unconstitutional by Justice Wittmann, who commented that the legislation “sacrifices the dignity of Minor Injury victims at the altar of reducing insurance premiums“. However, the Alberta Court of Appeal reversed the decision, and leave to appeal to the Supreme Court of Canada was denied.

 

Although the current government will be implementing the new changes, it will ultimately be left to the Courts to decide whether a cap on pain and suffering for “minor” injuries will remain in this province.

Court Of Appeal Rules That Losing Control On The Shoulder Of A Road Is Prima Facie Negligence

In Gaebel v. Lipka, the Plaintiff was a passenger in a motor vehicle where the driver lost control of the vehicle, and eventually crashed, causing injury to the Plaintiff.

 

The Plaintiff commenced formal legal proceedings. At trial, the Justice ruled that the Defendant did not drive onto the shoulder of the road, and did not breach the requisite standard of care when he lost control of the vehicle. Consequently, the Plaintiff’s claim was dismissed. The trial Justice also ruled that the Plaintiff did not prove that the accident caused any injury to him. The Plaintiff appealed.

 

Counsel for the Plaintiff argued that the trial Justice’s ruling that the Defendant did not drive onto the shoulder of the road was a palpable and overriding error. Further, it was argued that the trial Justice committed an error of law by misapprehending the principles of the law of negligence.

 

The Court of Appeal found that the ruling that the Defendant did not drive onto the shoulder of the road was clearly an error, and was contrary to the evidence presented at trial.

 

The Court of Appeal also ruled that the Defendant had not advanced any explanation as to how the accident may have occurred absent negligence on his part, and subsequently was deemed liable for the accident.

 

The Court of Appeal allowed the appeal, set aside the original dismissal of the Plaintiff’s claim, found the Defendant liable for the accident, and ordered a new trial with respect to the Plaintiff’s damages assessment.

 

[28]         The uncontradicted evidence establishes that Mr. Lipka lost control of the vehicle when he caused it to encroach onto the shoulder of the road. Mr. Lipka was fully familiar with the road. He drove it on a daily basis. He was aware of the soft shoulder. His practice was to move to the right while approaching the curve where the accident occurred. He had, however, never previously driven onto the shoulder or lost control of his vehicle

 

[30]         Once a prima facie case of negligence is proven, the onus shifts to the defendant to rebut the inference through the defence of explanation. A defence of explanation is an explanation of how the accident may have happened without the defendant’s negligence: Singleton v. Morris, 2010 BCCA 48 at para. 38.

 

[31]         In this case, Mr. Lipka has advanced no explanation as to how the accident may have occurred absent negligence on his part. The lack of an explanation distinguishes this case from cases such as Singleton and Nason, in which the trial judges found the prima facie case of negligence had been rebutted.

 

[32]         In the result, I find the respondents are wholly liable for Mr. Gaebel’s damages.

 

Court Of Appeal Upholds 50% Failure To Mitigate Reduction

In Mullens v. Toor, the Plaintiff was injured in a motor vehicle accident, and consequently sued for various types of damages, including non-pecuniary, income loss, diminished earning capacity, and the cost of future care.

 

At trial, the trial judge awarded damages in all these categories, however applied a 50% reduction to all such categories for the Plaintiff’s failure to mitigate her damages.

 

Mitigation is a legal obligation of a claimant in an ICBC injury claim. The claimant is expected to take active, reasonable steps in the recovery process to mitigate (lessen or reduce) damages and losses. Failure to mitigate can result in a reduction in the amount of damages awarded by a Court. In order for ICBC’S lawyer to be successful in an argument that a claimant did not mitigate damages, it would need to be shown that the claimant acted unreasonably in not following the advice of doctors, and it would also need to be shown to what extent, if any, that the claimant’s injuries would have been reduced had he or she acted reasonably. A failure to follow the advice of treatment providers is a common allegation made by ICBC’S lawyers when advancing a failure to mitigate argument in Court.

 

In the case at bar, the Plaintiff received awards by the Court for non-pecuniary damages, as well as diminished earning capacity, however the trial judge reduced such awards by 50% for the Plaintiff not following the advice of her doctors more diligently.

 

Counsel for the Plaintiff appealed, arguing that the failure to mitigate reduction should only apply to the non-pecuniary component, and not the diminished earning capacity component. Counsel for the Plaintiff further argued that the failure to mitigate argument advanced by ICBC’S lawyer only pertained to past wage loss.

 

The Court of Appeal dismissed the Plaintiff’s appeal, stating that the arguments made at trial by the Defendant pertaining to a failure to mitigate past loss of income were logically connected to other heads of damage. Further, the Court noted that the mitigation issue was generally explored in the evidence and had also been generally plead in the Response to the Notice of Civil Claim.

 

[53]      Ms. Mullens says that the respondents pleaded only a boilerplate failure to mitigate, and specifically argued only that past loss of income should be reduced by 50%. However, the judge also reduced his awards for non-pecuniary damages, loss of earning capacity, loss of pension and deferred profit sharing by 50% and the future cost of care by 10% because of a failure to mitigate.

 

[59]    The issue of mitigation was both specifically pleaded and extensively explored at trial. Experts testified to the mental health benefits of returning to work and the benefits of comprehensive psychiatric treatment. Counsel raised a failure to mitigate in general terms during closing submissions, and made specific reference to the benefits of returning to work, such as improved mental health. The specific arguments made with respect to a failure to mitigate past loss of income were logically connected to the other heads of damage claimed.

Court Of Appeal Orders New Trial In “Crumbling Skull” Case

In Gordon v. Ahn, the Plaintiff was injured in a motor vehicle accident, and consequently sued for damages, which included physical and psychological injury. Liability was admitted on behalf of the Defendant by ICBC’S lawyer.

 

The Plaintiff was eventually awarded $50,000 in damages at trial, however the trial judge had made an unspecified reduction in the award, being of the opinion that the principle of the “crumbling skull” doctrine applied.

 

In the context of ICBC injury claims, the legal doctrine of “crumbling skull” occurs where a claimant already has a deteriorating condition which is made worse and accelerated by a Defendant’s negligence. If there is a measurable risk that the Plaintiff would have eventually suffered from the condition in question anyways, then there can be a deduction in what a Court awards for damages.

 

The Plaintiff appealed on a number of grounds, with two of the grounds being that the trial judge had misapprehended evidence, and that the trial judge had erred by reducing damages for psychological and emotional injuries on the basis of the “crumbling skull doctrine”.

 

The Court of Appeal ruled that the evidence given at trial did not support the trial judge’s classification of the Plaintiff as being a “crumbling skull Plaintiff”, and further ruled that the trial judge did not adequately account for a reduction of damages in this regard.

 

The Court of Appeal allowed the appeal, and ordered a new trial. In referencing the phrase “crumbling skull” to describe a Plaintiff’s condition as rarely helpful, the Court commented:

 

[33]        The use of the phrase “crumbling skull” to describe a plaintiff’s condition is, in any event, rarely helpful. As Major J. explained in Athey, there are no special rules or analyses that apply to claims made by plaintiffs who, before becoming victims of a tort, are affected by conditions that may deteriorate in the future. Damages are always to be assessed by reference to the situation that the plaintiff would be in but for the wrongdoing ……

 

 

[34]        The judge found that there was “an inter-relationship between the pain that the plaintiff experienced from her physical injuries and her emotional or psychological problems”. He also found that her psychological problems “worsened because of the accident”. Even in cases where a plaintiff is suffering from serious chronic depression, an aggravation of the symptoms attributable to a tort is compensable: Sangha v. Chen, 2013 BCCA 267. In the present case, where the plaintiff’s symptoms were fairly minor before the accident, but developed into major depression as a result of the accident, it is clear that damages ought to have been awarded.

 

[35]        It is not apparent, from the judge’s reasons, whether he awarded any damages in respect of the depression brought on by the accident. Beyond referring to the “crumbling skull doctrine”, he did not undertake any analysis of the issue of damages in relation to Ms. Gordon’s emotional and psychological deterioration.

 

[36]        A proper analysis of the issue would have required the judge to consider the degree to which Ms. Gordon’s psychological and emotional health was damaged by the accident. Such an analysis would have required a detailed consideration of her pre-accident and post-accident mental health, as well as an assessment of the likelihood that a deterioration would have occurred even in the absence of an accident (see Laidlaw v. Couturier, 2010 BCCA 59). The judge failed, in this case, to undertake such an analysis.

Court Compels Plaintiff To Sign Consent Form For Independent Medical Examination

There is conflicting legal precedent on the issue of whether or not a Plaintiff can be forced to sign a consent form with respect to an independent medical examination, when such attendance has been court-ordered.

 

In Wee v. Fowler, the Plaintiff was injured in a motor vehicle collision, and consequently sued for damages.

 

At one point in the litigation process, ICBC’S lawyer requested that the Plaintiff be examined by a physiatrist for the purposes of an independent medical examination. Although this was initially refused by Plaintiff’s counsel, it was later agreed to in the form of a consent order.

 

However, upon arriving for the examination, the Plaintiff refused to sign the consent form, and the physiatrist would not proceed with the examination as a result of this. The issue was brought before the Court for further consideration.

 

ICBC’S lawyer argued that the law was clear with respect to the Court’s authority to compel a Plaintiff to consent to a medical examination, and that, provided the consent form is reasonable, the Court can and should order that it be signed.

 

Counsel for the Plaintiff submitted that ICBC’S lawyer had not sought an order requiring the Plaintiff to sign the consent form. Further, counsel for the Plaintiff argued that the Court does not have the authority to force a consent form to be signed, and that the consent form in question went beyond what is required, submitting that all that is required is that the Plaintiff agree that the doctor is entitled to conduct the examination. The Plaintiff’s objections were on the basis that :

 

  • She must acknowledge that the doctor in question is independent of the parties
  • She is not in a doctor/patient relationship with him
  • She received an explanation as to the nature of the assessment
  • She was there voluntarily or pursuant to a court order under Rule 7-6 (1)

 

The Court would rule that the consent form in question was reasonable, and ordered that the client sign it.

 

[40]         With respect to the plaintiff’s first objection, the plaintiff suggests that Dr. Hirsch is not “independent” as he receives instructions and communicates with only one party. While it is true that Dr. Hirsch was retained by one party to the litigation, under Rule 11-2, an expert who is retained to provide an opinion, which includes physicians conducting IME’s like Dr. Hirsch, has a duty to assist the court and not be an advocate for any party. Dr. Hirsch is, therefore, to perform a role that is truly independent of the parties to the litigation. In that regard, I note that both parties refer to Dr. Hirsch conducting an “independent medical examination” in their correspondence, which is reflective of the generally accepted role of physicians conducting such examinations. I do not accept that the reference in the consent form to Dr. Hirsch being independent or to his conducting an independent medical examination to be unreasonable.

 

[41]         The plaintiff also objects to the requirement that the plaintiff confirm her understanding that there is no doctor‑patient relationship arising from the IME. In my view, the statement, read in its context, elucidates its meaning, that is, Dr. Hirsch, although conducting a medical assessment, is not her treating physician. I am not prepared to find, without any evidence, that this statement is ambiguous or outside the knowledge of the plaintiff who, I note from the materials included in the Application Record, is a registered nurse working in a hospital setting. In any event, this is a matter which the plaintiff could ask of Dr. Hirsch should she need any clarification.

 

[42]         The third objection is that the plaintiff is asked to confirm in advance that she has received an explanation as to the nature of the assessment. Again, I do not have evidence that suggests Dr. Hirsch did not or would not discuss the nature of the assessment prior to commencing the IME or prior to asking the plaintiff to complete the consent form. I find no basis for this objection.

 

[43]         The final objection to the proposed form of consent is that it requires the plaintiff to agree that her attendance is voluntary or pursuant to Rule 7-6(1). The plaintiff suggests that it is either one or the other. In my view, these are the two usual circumstances under which a party participates in an IME, and the reference is simply descriptive of the basis for the plaintiff’s participation. I do not accept there is merit to the plaintiff’s objection.

Court Applies Principle Of Indivisibility Of Injuries When Plaintiff Does Not Sue For Second Accident Which Aggravated Injuries

In Griffioen v. Arnold, the Plaintiff was injured in two motor vehicle collisions. With respect to the first accident, she commenced legal proceedings, and liability was admitted on behalf of the Defendant by ICBC’S lawyer. In regards to the second accident, she was a passenger in a vehicle driven by her husband, who was deemed to be at fault for the accident. She elected not to commence legal proceedings. The injuries that she sustained in the first accident were aggravated by the second accident.

 

Given that the nature of the injuries were similar between the two accidents, the principle of indivisible injuries was considered by the Court.

 

Indivisible injuries can be injuries that cannot be separated, such as aggravation or exacerbation of an earlier injury; can be an injury to the same area of the body; or, can be global symptoms that are impossible to separate. In the event of two or more separate motor vehicle accidents, the law in British Columbia allows for joint and several liability in this scenario, with either one of the Defendants, as long as they contribute to the injuries, being wholly liable for the loss to the Plaintiff. It is then up to the Defendants to attempt to apportion the loss between them.

 

In the case at bar, ICBC’S lawyer argued that the Plaintiff’s award must be reduced to the extent that the second crash aggravated the injuries from the first accident.

 

The Court disagreed, commenting :

 

[123] In both Pinch and Sandhu, the plaintiffs were not simply beyond the time limit for commencing an action, but would be barred by statute from commencing an action even if they had done so within the statutory time limits.

 

[124] It seems to me that it was open to the defendants in this case to commence a third-party action provided it was commenced within the time limit that started when the defendants became aware of their right to commence an action against the plaintiff’s husband. That is, the time limits for the defendants may not be the same for a third party action as for an action by the plaintiff.

 

[125] The plaintiff obviously knew of her right to commence an action from the time of the accident. The defendants were aware of their right to commence an action from the time they discovered they might be liable for some damages from the second accident. I therefore find that Pinch and Sandhu are distinguishable from the facts of this case and in the circumstances, I am not prepared to apportion liability to the plaintiff’s husband in reliance on the principle of indivisibility and will apply the principle in Bradley.

 

Plaintiff Receives Award Less Than Defendant’s Offer, However Defendant Is Denied Post Offer Costs

In Barta v. DaSilva, the Plaintiff was injured in a motor vehicle accident, and consequently sued for damages.

 

The Plaintiff alleged a plethora of injuries, most notably a mild traumatic brain injury, which he alleged deprived him of the ability to make sound financial decisions, leading to a substantial loss in capital and income up to and after the time of trial.

 

Prior to trial, ICBC’S lawyer made a formal offer to settle in the amount of $150,000.00, plus costs and disbursements. This was offer was rejected by counsel for the Plaintiff, who made an offer of $970,000.00, plus costs and disbursements, which was also rejected.

 

At trial, the Plaintiff was only awarded $77,750.00 in damages, as it was determined that the Plaintiff had not suffered a brain injury, and that any loss of capital and/or income were not caused by any injuries attributable to the accident. As the court award was less than the formal offer made by ICBC’S lawyer, the Court’s discretion to award legal costs against the Plaintiff was triggered.

 

Counsel for the Plaintiff argued that the Plaintiff should be awarded party and party costs throughout the entirety of the proceeding, including trial. ICBC’S lawyer argued that the Plaintiff should be entitled to costs only up the point that the Defendant’s formal offer was made, and that the Defendant should be entitled to costs after the point that the Defendant’s formal offer was made, or alternatively, that the Plaintiff be awarded costs up to the point of the Defendant’s formal offer, with each party bearing their own costs after that point in time.

 

The Court concluded that the Defendant’s offer ought reasonably to have been accepted, given the tenuous connection between the Plaintiff’s injuries, and the alleged financial losses.

 

The Court also took note of the fact that the Defendant’s formal offer was almost double that of the actual Court award, leading the Court to conclude that the Plaintiff should not be awarded costs throughout, including trial, as this would defeat the purpose of the deterrent function of the costs rule.

 

The Plaintiff was awarded costs up to the point of the Defendant’s formal offer to settle. Usually under the circumstances of the case at bar, the Plaintiff would be ordered to pay the Defendant’s post offer costs for failing to beat the Defendant’s formal offer to settle, however the Court ruled that each party would bear their own post offer costs.

 

[10]        The plaintiff submits the offer made by the defendant was not one “that ought reasonably to have been accepted”. Mr. Creighton submits that when a plaintiff experiences depression that condition may manifest itself in a variety of ways, including those that mimic a mild traumatic brain injury, and therefore the plaintiff in this case was faced with particular difficulties in assessing the reasonableness of the defendant’s offer. I do not agree. Many plaintiffs in personal injury cases have far more complex conditions than Mr. Barta but they must, nevertheless, do their best to make a realistic assessment of their claim when they receive an offer to settle.

 


[12]        The defendant’s offer of $150,000 plus costs and disbursements was a serious offer. The plaintiff ought to have known that the defendant’s legal advisers had a plausible basis for concluding that the plaintiff would be unable to prove a causal connection between his accident injuries and his financial losses. In my opinion the defendant’s offer ought reasonably to have been accepted.

 

[13]        The relative financial position of the parties is of no consequence on this application. The defence was conducted by ICBC, which obviously has much greater financial strength than the plaintiff, but unless it used that strength improperly in this litigation that is a neutral factor: See Vander Maeden v. Condon, 2014 BCSC 677.

 

[14]        When its offer to settle was not accepted the defendant had no serious option but to defend the action at trial. The result was an award of damages about one half the offer made by the defendant. In that circumstance the deterrent function of the costs rule would be nullified if I exercise my discretion by awarding costs to the plaintiff throughout as he submits I should. I declined to do so.

 

[15]        The evidence at trial indicates that the plaintiff’s assets were severely depleted by the effects of the financial downturn in 2008 and 2009. Mr. Creighton informed me that his client’s income is now meagre. I can see no utility in imposing the costs of the trial on the plaintiff.

 

[16]        My order is that the plaintiff is entitled to his costs and disbursements to and including May 15, 2014, and that thereafter the parties will each bear their own costs and disbursements. I recognize that the usual order would be to impose the costs following the defendant’s offer on the plaintiff. The defendant, however, has proposed the disposition which I have made, which I consider to be generous to the plaintiff in the circumstances.

 

Court Rules That Adverse Costs Insurance Is Not A Compensable Disbursement

In Wynia v. Soviskov, the Court considered the issue of whether or not the premium for adverse costs insurance was compensable as a disbursement.

 

Adverse costs insurance, also known as “after the event” insurance, is a form of insurance policy purchased by a Plaintiff to provide financial protection in the event that the Court makes a judgment for costs against the Plaintiff after a trial should the Plaintiff be unsuccessful. It can also apply to a successful Plaintiff who is granted an award at trial that is less than the amount of the Defendant’s formal offer to settle. A benefit of purchasing the policy is that it can help level the playing field in that Plaintiffs, who may be hesitant to proceed to trial out of fear of a crushing costs award, can have access to justice.

 

In the case at bar, counsel for the Plaintiff sought to recover the cost of premiums for an adverse costs insurance policy purchased by the Plaintiff to insure against the Plaintiffs’ own disbursements, as well as the Defendant’s costs and disbursements.

 

There appeared to be no British Columbia case authority directly on point. Counsel for the Defendant relied on the Ontario case of Markovic v. Richards et al. for the proposition that the cost of premiums for an adverse costs insurance was not a compensable disbursement.

 

Rule 14-1(5)(a) of the British Columbia Supreme Court Civil Rules states that a registrar must determine which disbursements have been necessarily or properly incurred in the conduct of the proceeding. In the case at bar, the Court cited the well known British Columbia Court of Appeal case of MacKenzie v. Rogalasky for judicial consideration of the meaning of necessarily or properly incurred in the conduct of the proceeding.

 

In ruling that the premiums for an adverse costs policy are not recoverable as a disbursement, the Court commented :

 

[6] In British Columbia, to be recoverable as a disbursement SCCR 14-1(5) provides that the disbursement must have been necessarily or properly incurred in the conduct of the proceeding. The phrase “necessarily or properly incurred in the conduct of the proceeding” was recently addressed by the Court of Appeal in MacKenzie v. Rogalasky, 2014 BCCA 446. The Court of Appeal states …

 

[79] The rule, in its current form, permits the recovery of “disbursements … incurred in the conduct of the proceeding”. In my view, quite apart from the language “incurred in the conduct of the proceeding” the term “disbursement”, when used in the context of a costs rule that relates to the taxation of costs in particular litigation, does contain limits that narrow its potential broad applicability. It appears to me that the purpose of permitting the recovery of disbursements in the context of a costs regime is to permit the recovery of those expenses that arise inherently and directly from the issues in the case which relate, as the appellants suggest, to the direction, management, or control of litigation and which pay for materials and services used to prove a claim or defence. These expenses arise directly from the nature and conduct of the allegations in a proceeding.

 

[7] In my view, applying the reasons of the BCCA in MacKenzie v. Rogalasky, supra, the cost of insurance coverage is not a proper or necessary disbursement incurred in the conduct of the proceeding. No doubt it provides a measure of financial comfort to the plaintiff, however, it does not arise from the exigencies of the proceeding and relate directly to the direction, management, or control of the litigation used to prove a claim against the defendants. Accordingly, the cost of the insurance coverage is disallowed.