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.

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