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.

Plaintiff Ordered To Pay Double Costs After Claim Dismissed At Trial

In Ross v. Andrews, the Plaintiff was injured in a motor vehicle accident, and consequently sued for damages. Prior to trial, ICBC’S lawyer had made two formal offers to settle, both of which were rejected by counsel for the Plaintiff.


The trial lasted for 15 days, and was by judge and jury. At the conclusion of counsel’s submissions, and the court’s instructions, the jury after deliberations determined that the Plaintiff had not been injured in the accident. The Plaintiff’s case was dismissed, with the costs issue being adjourned until a later point in time.


ICBC’S lawyer brought a costs application, seeking double costs from the date of service of either the first or last formal offer of the Defendant, to the date of trial, arguing that given the Plaintiff’s credibility problems prior to trial, that the offers were reasonable, and ought to have been accepted.


Counsel for the Plaintiff submitted that there was sufficient medical evidence upon which the Plaintiff could rely on to advance his case, and further that an award of double costs would be financial hardship to the Plaintiff.


The Court awarded double costs to the Defendant from a period of time of seven days after the delivery of the second formal offer to settle, to the date of trial, ruling that the offer ought reasonably to have been accepted, in light of how the credibility problems may be perceived by the jury.


[21]         Based on a review of the evidence at trial, described in part above, and the cases cited, as well as a review of the submissions of counsel, I find that the offer to settle in the amount of $75,000 ought reasonably to have been accepted by the plaintiff having given consideration to the foreseeable credibility problems and the negative verdict of the jury. The offers to settle both included positive returns whereas at trial the plaintiff’s action was dismissed. The relative financial circumstances of the parties do not preclude an order for double costs in this situation. As a result, applying Rule 9-1 of the Supreme Court Rules, the defendants are entitled to the costs of this action generally and double costs of this action commencing on May 26, 2016. This date is seven days after the second offer to settle was delivered to the plaintiff; a reasonable period of time for the plaintiff to consider the offer. Double costs are awarded from May 26, 2016 until the end of the trial and will include the costs of the application to fix costs. The defendants are also entitled to disbursements but not doubled.


[22]         The evidence aforesaid created significant areas where the credibility of the plaintiff was subject to negative findings by a jury. When those areas are added together the plaintiff ought to have actively considered any offer which offered a positive return without the risks of a trial.


Plaintiff Awarded Double Costs For Nearly Doubling Formal Offer to Settle

In Risling v. Riches-Glazema, the Plaintiff was injured in a motor vehicle accident when the Defendant turned left across the path of her vehicle. The Plaintiff commenced legal proceedings, seeking non-pecuniary damages, past diminished earning capacity, special damages, diminished earning capacity into the future, and the cost of future care. Liability was admitted by ICBC’S lawyer.


Prior to trial, counsel for the Plaintiff had made a formal offer to settle in the amount of $315,000.00, plus costs and disbursements, which was rejected by ICBC’S lawyer. The trial judge awarded the Plaintiff $622,500.00, almost double the amount of the Plaintiff’s formal offer to settle. At a costs application, counsel for the Plaintiff sought costs of the trial, plus double costs from the date of the offer to the time of trial.


Of the many considerations available to a Court when deciding on whether or not to award double costs, the Court focused on whether or not the Plaintiff’s formal offer to settle was one that “ought reasonably to have been accepted”, and cited the British Columbia Court of Appeal decision in Hartshorne v. Hartshorne.


In awarding the Plaintiff double costs from the date of the offer to the time of trial, the Court commented :


[7]             In my view:


a)              The plaintiff’s case was well known to the defendants at the time of the offer. The plaintiff had been examined for discovery on two occasions; had attended two medical examinations at the request of the defendants, and a mediation had taken place in June 2016;


b)              the offer was made one week before the trial began which gave the defendants a full opportunity to consider it;


c)               the offer had a relationship to the claim and could not be characterized as a “nuisance offer”; and


d)              the offer was expressed in plain language and thus easily evaluated.


[10]         The defendants submit their limited understanding of the case made it difficult to quantify the claim and that, while the rationale for the rule for double costs is acknowledged, the defendants ought not to have been deterred from defending the claim for fear of a “punishing costs award”. Currie v. McKinnon, 2012 BCSC 1165 is relied on in support of that argument.


[11]         The defendants also submit that “no rationale for the offer was provided” in the plaintiff’s letter of August 15, 2016.


[12]         I do not agree that no rationale was provided. The plaintiff described the heads of damages she would advance at the trial and advised that the offer took into account “Part 7 Benefits paid or payable pursuant to Section 83 of the Insurance (Vehicle) Act”. Furthermore, the defendants had an opportunity on the mediation to canvas fully with the plaintiff’s legal advisers the extent of the plaintiff’s claim and the evidence at trial which would be advanced to support the claim.


Plaintiff’s Hit And Run Claim Dismissed For Not Providing Proper Section 24(2) Notice Under Insurance (Vehicle) Act

In Parmar Estate v. British Columbia, the Plaintiffs were killed in a hit and run accident, with the estate consequently suing for damages. Although the Notice of Civil Claim was served and filed within the appropriate limitation periods, the Plaintiffs did not notify ICBC within six months of the accident of their intention to bring a hit and run claim, which is a requirement under Section 24(2) of the Insurance (Vehicle) Act.


By way of a Rule 9-6 Summary Judgment application, ICBC’S sought to have the Plaintiffs’ claims dismissed for not complying with the Section 24(2) notice requirement, nor the “reasonable efforts” obligation under Section 24(5) of the Insurance (Vehicle) Act.


Counsel for the Plaintiffs argued that Section 24(2) is not absolute, and must be read in conjunction with Section 24(3), which provides that after an action referred to in Section 24(1) has been commenced, it is alleged that injury, death, or property damage was caused or contributed to by an unknown motorist, the court can add ICBC as a nominal defendant.


ICBC’S lawyer argued that, as the proper notice under Section 24(2) was not given, there was no genuine issue to be tried. As a result, the Plaintiffs’ claims should be dismissed.


The Court dismissed the Plaintiffs’ claims for failing to comply with the Section 24(2) notice requirement, commenting that :


[15] I do not accept the plaintiffs’ interpretation of s. 24 of the Act. Their reliance on the Jamt decision is misplaced, particularly, as noted in that decision, ICBC was named as a nominal defendant at the commencement of this action.


[16] Here, it is clear that ICBC did not receive notice of the allegations against an unknown driver within six months of the accident. The notice of civil claim can serve as notice to ICBC under s. 24(2). Even so, the notice of civil claim was not filed until two years after the accident and was not served until three years after the accident.


[17] The plaintiffs provide no explanation for the lack of notice or for the failure to serve the notice of claim for a year following its filing. As noted in the chronology, the accident was not reported to ICBC until March or April 2014. There is no basis upon which I can conclude that the notice was given to ICBC “as soon as reasonably practicable”. The lack of notice is fatal to the plaintiffs’ claim.


[18] I am satisfied that the action against ICBC raises no genuine triable issue and must be dismissed.

Court Awards Full Fast Track Costs To Plaintiff In Case Settled 7 Months Prior To Trial

In Yuan v. Fan, the Plaintiff was injured in a head on collision, and consequently sued for damages. Liability was admitted by ICBC’S lawyer on behalf of the Defendant.


Prior to trial, there was an Examination for Discovery of the Plaintiff, as well as an exchange of documentation between the parties. The Plaintiff produced two expert reports, one from her family doctor, and one from a psychiatrist. Settlement proposals were exchanged between the parties, with the matter finally settling approximately seven months before the scheduled trial date.


Some ICBC injury claims proceed through fast track litigation, which is a faster way to have a case proceed through the litigation process. The fast track process applies to ICBC injury claims that can be completed in three days or less, or to those ICBC injury claims where the amount of damages sought by the Plaintiff is less than $100,000.00. Subject to a Court’s discretion, there is usually a set sum of costs awarded to the successful party in a fast track matter. Counsel for the Plaintiff in the case at bar proceeded by way of fast track litigation.


Counsel for the Plaintiff sought the full fast track costs amount of $6,500.00, arguing that there had been “significant preparation for trial”. ICBC’S lawyer argued that there had not been significant preparation for trial.


The Court, in noting that whether or not significant preparation for trial had occurred depends on the circumstances of each case, awarded the Plaintiff full costs.


[8] Whether the successful party’s case was significantly ready for trial is a case‑specific inquiry. In Noori v. Pochman, 2016 BCSC 1329, at paragraph 6, the court states:


Different cases involving different parties, different injuries, and different issues will be ready for trial at different times depending on the circumstances.


[10] In the present case liability was admitted, therefore work in that regard wasn’t needed. The plaintiff abandoned her claim for wage loss, and therefore, no pre-trial work was necessary in that regard. Discoveries had been completed, document exchanges had been completed, and medicolegal reports had been obtained. Detailed settlement offers had been exchanged. All that remained to be done was the filing of a trial brief, attending a trial management conference, and immediate trial preparation. Immediate trial preparation is required in each and every case whether settlement occurs two weeks, or two months prior to trial.


[11] This was not a complex case. It was a simple case of assessing damages where there wasn’t a wage loss claim. Simple cases require less work to be ready for trial. The plaintiff’s case has met the threshold of being significantly prepared for trial in all the circumstances. I award the full fast track cap.