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.

 

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