Proceeding to a trial in an ICBC injury claim can carry great financial risk. For example, if a Plaintiff, although successful at trial in obtaining a judgment, does not beat the amount of ICBC’S last formal offer to settle, he or she can be subject to serious financial consequences.

 

Nowhere is this more evident than in the case of Gill v. McChesney.

 

The Plaintiff was injured in a motor vehicle accident, and consequently brought formal legal proceedings. Prior to trial, ICBC’S lawyer made two formal offers to settle, with the second one before shortly before trial. The offer was rejected by the Plaintiff.

 

The Plaintiff succeeded at trial in obtaining a judgement, however it was far less than the amount of ICBC’S final formal offer to settle. This triggered the Court’s discretion to consider costs consequences against the Plaintiff.

 

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.

 

In focusing on Rules 9-1(6)(a) and (b), the Court ruled that the Plaintiff should have accepted a reasonable offer, and that the amount of the judgment was significantly less than the amount of both of the lawyer for ICBC’S offers.

 

[54] When I apply the legal framework to which I have referred and consider all the relevant factors, the real issue in my view is whether the plaintiff should pay the defendants’ costs after August 18, 2015, or whether the parties should bear their respective costs from that date onwards.

 

[55] While not entirely analogous, this case does have certain similarities to those in Dennis, where the finder of fact concluded the plaintiff was untruthful and/or misled experts, as opposed to the situation where the plaintiff cannot be expected to know in advance how the court might assess his/her credibility in the witness box.

 

[56] Here, the plaintiff did not accept a reasonable offer and the award at trial was significantly less than either the First or the Second Offers.

 

[57] As was stated in Luckett v. Chahal, 2017 BCSC 1983 at para. 47:

 

[47] But what happened here is that the plaintiff, well aware of the significant credibility issues at stake, chose to gamble or “take his chances” by going to trial and lost. He should live with the consequences which Rule 9-1(4) seeks to avoid: Wafler v. Trinh, 2014 BCCA 95 at para. 81.

 

[58] In my view, that is what occurred in this case.

 

[59] Accordingly, the plaintiff is entitled to her costs and disbursements at Scale B to August 18, 2015, and the defendants to their costs and disbursements at Scale B thereafter.

 

“After the Event” insurance policies are obtained in order to provide costs and disbursements protection to a Plaintiff bringing a matter to trial.

 

A common policy would provide for $100,000 in coverage to cover any adverse costs awarded to the Defendant, as well as to cover any of the Plaintiff’s own disbursements.

 

In Clubine v. Panigua, the Plaintiff was injured in a motor vehicle accident, and subsequently commenced formal legal proceedings. Prior to trial, ICBC’S lawyer had made a formal offer to settle. At trial, the court award was less than the amount of this offer.

 

ICBC’S lawyer argued that the Plaintiff should only be entitled to costs and disbursements up to the date of the formal offer to settle, and that the Defendant should be entitled to costs and disbursements after the date of the formal offer to settle.

 

Counsel for the Plaintiff argued that the Plaintiff should receive costs throughout the entirety of the proceedings.

 

Typically, the Court considers the following factors as elucidated in Rule 9-1(6) of the Supreme Court Civil Rules when assessing costs :

 

(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; and

 

(d) any other factor the court considers appropriate.

 

In the case at bar, however, the Court also considered the factor of the “After the Event” insurance policy held by the Plaintiff.

 

The court did not award any post-trial costs to the Plaintiff, and granted the Defendant costs and disbursements after the date of the formal offer to settle, commenting :

 

[27] On the costs application it was disclosed that the plaintiff purchased adverse cost insurance known as “After-the-Event” (“ATE”) insurance prior to trial. In submissions the plaintiff explained that the ATE insurance would cover the defendant’s disbursements and costs from the date of the offer if costs were awarded against the plaintiff, and would also pay for the plaintiff’s disbursements incurred but not awarded from the date of the offer. It will not pay for the plaintiff’s costs following the date of the offer.

 

[28] The defendant submits that the ATE insurance effectively undermines the intent of the offer to settle rule. It allows a plaintiff to avoid the punitive costs consequences of the rule, ignore reasonable offers to settle, and with impunity take their chance at trial. The winnowing function of the costs rules is obviated by ATE insurance; doubtful cases can proceed through litigation without risk of adverse costs consequences. I conclude in this case that this insurance had such an effect.

 

[29] The ATE insurance in this case strongly weighs in favour of the defendant’s costs application.

 

[30] The defendant made reasonable efforts to settle this matter. The plaintiff’s failure to accept the reasonable offer to settle should have costs consequences. The ATE insurance held by the plaintiff is a factor that further weighs against costs following the event in these circumstances. 

 

[31] The offer was open to the eve of trial, July 22, 2016. In these circumstances the plaintiff is entitled to only his pre-trial costs of $6,500 plus disbursements. The defendant’s application is granted and she is entitled to the costs and disbursements of the trial.

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.

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.

 

 

[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.

 

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.

 

 

 

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.

 

In Monoharan v. Khan, the Plaintiff was injured in a motor vehicle accident, and consequently advanced an ICBC claim for injuries.

 

Two business days before the start of trial, the Plaintiff made a formal offer to settle in the amount of $425,000.00 “new money”, plus costs and disbursements, which was rejected by ICBC’S lawyer.

 

At trial, the Plaintiff sought damages for pain and suffering, income loss, loss of housekeeping capacity, diminished earning capacity, out of pocket expenses, and the cost of future care. Numerous experts were called by the Plaintiff, including a family physician, psychologist, psychiatrist, and physiatrist. At trial, substantial damages were awarded to the Plaintiff in the amount of $984,167.00, far in excess of the Plaintiff’s final formal offer to settle.

 

At a later costs application, counsel for the Plaintiff sought double costs due to the fact that the amount of the judgment exceeded the Plaintiff’s final formal offer to settle. ICBC’S lawyer argued that there was not enough time to properly review the offer, as it was only served two business days before trial.

 

The trial judge considered Rule 9-1(6) of the Rules of Court, which states :

 

Considerations of court

 

(6) In making an order under subrule (5), the court may consider the following:

 

(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.

 

The trial judge determined that ICBC’S lawyer had sufficient time within which to respond to the Plaintiff’s formal offer, and as such awarded double costs to the Plaintiff for the trial itself.

 

[1]            The trial of this personal injury action began on a Monday, January 25, 2016 and continued over the next two weeks. The parties exchanged formal offers to settle in the week before the trial began. The plaintiff delivered an offer early on January 21, 2016.  This was effectively two business days before the weekend which intervened before the trial was to begin. The plaintiff’s offer was to settle for $425,000 “new money” plus costs and disbursements.

 

[2]            As would be expected both parties at that time had been actively considering the question of how to evaluate the likely damage award and to assess whether an offer made by the other party ought reasonably to be accepted. The defendant suggests she was pressed for time to respond to the plaintiff’s offer and if double costs are to be awarded they ought not to be assessed from the beginning of the trial.

 

[3]            In my opinion, the defendant had ample time to respond to the plaintiff’s offer and to consider whether the offer was one which reasonably ought to have been accepted.

 

[4]            The final judgment awarded exceeded $900,000. I have considered the factors enumerated in Rule 9–1(6) and conclude the plaintiff is entitled to party and party costs on Scale B up to the beginning of the trial and double costs for the trial itself.

In Anderson v. Kozniuk, the Plaintiff was injured as a pedestrian when struck by a motor vehicle. The Plaintiff consequently advanced an ICBC claim for various injuries, including hip and clavicle fractures, as well as a mild traumatic brain injury. Liability was contested. At trial, the Plaintiff was awarded damages for his fractures, however not for the mild traumatic brain injury.

 

Prior to trial, ICBC’S lawyer made a formal settlement offer for $125,000.00, which was rejected by the Plaintiff. At trial, there was a finding of 30% contributory negligence against the Plaintiff, and the Plaintiff received an award that was substantially less than the formal settlement offer.

 

ICBC’S lawyer brought an application to determine costs, and sought an order that the Defendant pay 70% of the Plaintiff’s costs and disbursements up to the point of the final formal settlement offer, and that the Plaintiff pay 100% of the Defendant’s costs after that date. Counsel for the Plaintiff took the position that the Plaintiff was entitled to 100% of his costs, as he was the successful party. Counsel for the Plaintiff further argued that it would be unfair and unreasonable to make the Plaintiff pay the Defendant’s costs, as the Plaintiff was impecunious, the Defendant was funded by an insurer, and the award of costs to the Defendant would actually exceed the amount of the Plaintiff’s judgment. The Court agreed with this point, noting that costs awards should not punish Plaintiffs for taking meritorious claims to trial.

 

Quite often, when a Plaintiff receives a trial award that is less than the Defendant’s formal settlement offer, the Court will exercise its’ discretion to deny the Plaintiff post-offer costs, and award the Defendant post-offer costs. However, in the case at bar, the Court would not strip the Plaintiff of his post offer costs, and would not order the Plaintiff to pay the Defendant’s post offer costs.

 

[28]         The final factor in the Moses v. Kim analysis is whether the plaintiff’s substantial success would be defeated if costs were awarded. The plaintiff says it is appropriate to consider whether the costs award could substantially outweigh a relatively modest award of damages: Cairns v. Gill, 2011 BCSC 420. However, the defendant points out that, “[i]t is not the court’s function to ensure that a plaintiff makes a net recovery from an action when it has ignored a reasonable offer”:  Dempsey v. Oh, 2011 BCSC 627 at para. 19. I have already concluded it was not unreasonable for the plaintiff to reject the settlement offer, so the Dempsey case does not apply. Moreover, the amount awarded at trial in that case was less than 1/8 of the offer that was rejected: the offer was $165,000 and the trial judge only awarded $20,629.96.

 

[29]         The plaintiff submitted that the award of costs in this case exceeds the total amount of the judgment. In his written submissions, the plaintiff states that “[i]f the court orders that the Plaintiff is to pay costs to ICBC, it means that Mr. Anderson must pay the entire judgment award to ICBC, instead of spending this money on his health condition and prognosis.” I agree that is a significant factor if the court is to be mindful that costs awards should not punish plaintiffs from taking forward meritorious claims, as discussed above.

 

[33]         The award of costs is an exercise of the court’s discretion, guided by the legal principles identified above. This is not an exercise of counting up which factors favour which party and doing a mathematical calculation. The court must take into account all of the factors weighed against the circumstances of the case. Remembering that ultimately the result must not impose injustice or unfairness on either party, I exercise my discretion and conclude the normal rule of apportionment does not apply and therefore the plaintiff is entitled to 100% of his costs at trial. Because he has been successful on this application, I also award him the costs of this hearing. 

In Lanz v. Silver Lady Limousine Service Ltd., the Plaintiff was injured in two motor vehicle collisions, and brought ICBC claims for both. Liability was denied in both cases by ICBC’S lawyer. The two claims were consolidated for trial purposes, with the jury dismissing the Plaintiff’s claims.

 

Prior to trial, several offers were exchanged between the parties. The initial offer from ICBC’S lawyer was for $40,000.00, plus 50% of costs and disbursements on top of the offer, while a later offer would be phrased as “new money”, inclusive of costs of disbursements, with nothing more specific than that.

 

A hearing was set down for counsel to argue the issue of costs. Counsel for the Plaintiff conceded that the Defendant was entitled to costs for being the successful party, but argued that double costs were not appropriate in the circumstances, as the offers ought not reasonably to have been accepted.

 

The Court cited the well known Court of Appeal decision in Hartshorne v. Hartshorne for the factors a Court considers in deciding on whether an offer ought reasonably to have been accepted or not. Such factors include the timing of the offer; whether the offer had some relationship to the value of the claim; whether the offer could be easily evaluated; and whether some rationale for the offer was provided.

 

The Court also quoted Justice Adair’s comments at paragraph 20 of Currie v. McKinnon that : “while the purpose of the Rule is to encourage reasonable settlements, parties should not be unduly deterred from bringing meritorious, but uncertain, claims because of the fear of a punishing costs order.”

 

In ruling that double costs would not be appropriate in the case at bar, the Court commented :

 

[22]         The defendants first offered $50,000 plus only 50% of costs; their last offer was $80,000 “new money” inclusive of costs and disbursements. In my view, there is a legitimate cause for concern when a defendant’s offer does not include costs and disbursements in a personal injury case where liability and damages are at issue. It could be seen as a tactic discouraging the plaintiff from gathering evidence to substantiate her claim in the first place. Plaintiffs carry the evidentiary burden to prove their case and they are obliged to bring forward expert medical evidence. In this case, the defendant’s offer was made more than a year after the plaintiff’s original offer, when presumably significant costs may already have been incurred with no indication from the defendants that settlement was a possibility.

 

[23]         In the context of this case, I do not find the defendants’ offers to be ones the plaintiff ought to have accepted because they did not include costs and disbursements as discrete items. I see nothing about this case that justifies penalizing the plaintiff for failing to correctly guess the jury would not accept her claims. I conclude that awarding double costs amount to imposing a heavy penalty on a plaintiff that was forced to endure the unpredictability of a jury trial. I find the day before trial, she had reasonable basis to pursue her case at trial. The defendants’ offers were devoid of discrete recognition of costs and, in my view, that was a disincentive to settle.

In Sturdy v. Dhadda, the Plaintiff was injured in a motor vehicle accident, and subsequently advanced an ICBC claim for damages for pain and suffering, as well as various other types of damages.

 

Prior to trial, the matter settled for approximately $300,000.00, plus taxable costs and disbursements.

 

ICBC’S lawyer disputed the reasonableness of the costs of some of the Plaintiff’s expert reports, which included a report from a neurologist, a psychiatrist, and a physiatrist. As ICBC’S lawyer would not disclose the cost of the Defendant’s expert reports, counsel for the Plaintiff brought an application for an order that ICBC’S lawyer disclose the cost of such reports, in order to compare and contrast the Plaintiff’s expert fees with those of the Defendant’s in the exact same or similar specialties.

 

The bases for the objection of ICBC’S lawyer were that the production of invoices from the Defendants’ experts would not discharge the Plaintiff’s onus to justify the reasonableness of the Plaintiff’s expert fees; secondly, the production of the invoices would offend the Defendants’ solicitor-client relationship with respect to privilege; and, thirdly, the costs of the Defendants’ expert reports would not be relevant to the issue of the Plaintiff’s costs for expert reports.

 

In granting the Plaintiffs’ application, District Registrar Nielsen commented :

 

[12]         In my view, the information sought by the plaintiff is relevant. Registrars often compare the charges of a particular expert within the same or similar speciality. The information sought by the plaintiff would involve the same or similar specialities within the same litigation concerning the same plaintiff, based upon the same clinical history.

 

[18]         What these cases demonstrate is that a comparison of the same or like expert within the same litigation is relevant. By allowing the party who challenges the reasonableness of the assessments charged by the assessing party’s experts to cherry pick what accounts they will or will not disclose leads to selective and inconsistent disclosure. If disclosure suggests the other party’s accounts are too high, they are readily disclosed for that purpose. On the other hand, if they do not, those records, for strategic reasons, are simply not produced. In my view, this leads to an imbalance which requires the levelling of the playing field.

 

[30]         In these circumstances, where the defendants have served their expert reports upon the plaintiff, the amounts paid by the defendants to their experts in the same specialities, involving the same patient, with the same clinical history, will be relevant. While a comparison of fees and charges would not be determinative and is only a single factor in the analysis, it is a matter properly considered in the context of this case, where the defendants are directly challenging the reasonableness of the plaintiff’s experts’ accounts.