IN THE SUPREME COURT OF BRITISH
COLUMBIA

Date: 20110119

Docket: M075446

Registry:
Vancouver

Between:

Sarah Brooks

Plaintiff

And

Robert
Gilchrist, James Gilchrist, and Brendan Beynon

Defendants

And

Insurance
Corporation of British Columbia

Third
Party

– and –

Docket: S091220

Registry:
Vancouver

Between:

Sarah Brooks

Plaintiff

And

Insurance
Corporation of British Columbia and John Doe

Defendants

Before:
The Honourable Mr. Justice Sigurdson

Reasons for Judgment – Costs

[1]            
This is an application for costs following my reasons dated May 14, 2010
[2010 BCSC 685], which were delivered following a trial of two motor vehicle
accidents, which took place in January and February 2010 over six days.

[2]            
The claim in the main action, M075446, was dismissed on the ground that
there was no collision, and hence no damage.  In the other action, S091220, against
an unidentified motorist, I found there to be a minor collision and awarded the
plaintiff $4,000 in damages.

[3]            
The defendants, Robert Gilchrist and ICBC, apply for costs, as well as
for double costs.

[4]            
 On November 27, 2009, offers to settle were delivered on behalf of ICBC
and Robert Gilchrist in the main action, offering $1 plus disbursements, and in
the second action on behalf of ICBC, offering $5,000 plus disbursements.  Because
the award in each case was poorer than the offer, the defendants in both
actions seek double costs.

[5]            
 The plaintiff on the other hand says that each party should bear their
own costs.

[6]            
The relevant considerations when an offer to settle has been made appear
in Rule 37B(5), now Rule 9-1(5), which provides in part as follows:

(5)  In a proceeding in which an offer to settle has been
made, the court may do one or more of the following:

(a) deprive a party of any or all
of the costs, including any or all of the disbursements, to which the party
would otherwise be entitled in respect of all or some of the steps taken in the
proceeding after the date of delivery or service of the offer to settle;

(b) award double costs of all or
some of the steps taken in the proceeding after the date of delivery or service
of the offer to settle;

…

[7]            
Rule 9-1(6) states:

(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.

[8]            
In some respects this was an unusual case.

[9]            
The circumstances giving rise to the main action are set out in some
detail in my reasons for judgment.  In brief, the plaintiff was stopped at a
red light at the intersection of Grandview Highway and Rupert Street, when the
vehicle in the lane next to her was rear-ended by a vehicle driven by the
defendant, James Gilchrist.  She heard a loud sound and felt that she may have
been hit.  Upon arriving at home, her husband pointed out, and she observed,
scuffs to the driver’s side of the vehicle and suspected that the car alongside
her that was struck had sideswiped her vehicle.  This is what she believed
until shortly before trial.

[10]        
However, in the exchange of expert reports shortly before trial, it
became clear that the expert evidence at trial would be that the plaintiff
could not have been sideswiped, and there was, from the plaintiff’s
perspective, only a possibility that her vehicle was rear-ended by the Gilchrist
vehicle, without any damage to her car.

[11]        
While ICBC does not dispute that the plaintiff had a bona fide belief
that she was in a collision, its counsel submits that it was unreasonable for
her to continue to hold that belief once the expert reports were exchanged and neither
report supported her theory that there had been such a collision.  Shortly
before the trial, when her counsel served the report of his expert he wrote "based
on this report, my client accepts that she must have been mistaken about the
cause of the scratches along the driver’s door of the Dodge".  Mr. Hulley,
counsel for ICBC, says that by January 19, 2010, the plaintiff was aware that
the theory that she had been sideswiped by the Beynon vehicle after it was
struck by the Gilchrist vehicle was without merit and she was left with at best
an alternative theory that “the most likely source of the impact she felt, was
the right front of the truck’s bumper, colliding with the rear left of her
bumper".  Although the plaintiff’s expert’s report left open the
possibility that the right front of the Gilchrist truck collided with the rear
left of her bumper, any contact did not cause any damage to the bumper of her
car or the truck.

[12]        
Mr. Noble argues that, given all the circumstances, including the
fact that the defendant drivers had misrepresented to ICBC the circumstances of
the accident, it was reasonable for the plaintiff to believe that she had been
in an accident.  He argues that the pre-trial negotiations, which included a
significant offer by ICBC, before the exchange of expert reports made it
difficult for her to recognize the prospect that she was unlikely to obtain a
damage award at trial.  He submits that the plaintiff honestly believed there
was an accident which worsened her previous symptoms of musculoskeletal aches
and pains and the defendant drivers’ lack of candour with ICBC suggested that
she should place little weight on their evidence that there was no collision,
particularly when at the scene Mr. Gilchrist had said words to the effect
of “Oh no, did I hit you too?”.

[13]        
In all the circumstances what is the appropriate costs order?

[14]        
I will deal first with the costs of the main action.

[15]        
First, in the main action the defendant was wholly successful and I
think that costs should follow the event.  I do not see any proper basis upon
which each party shall bear its own costs as Mr. Noble suggests.

[16]        
In terms of the relationship between the terms of settlement offered and
the final judgment of the court, the offer was better than the result, but the
offer was only for the sum of $1 plus disbursements.  Ordinarily I would think
that a nominal offer of one dollar may not attract orders for double costs but
I know that in some cases even nominal offers may attract orders of double
costs.  See for example MacKinlay v. MacKinlay Estate, 2008 BCSC 1570; Ludwig
v. Bos, 2010 BCSC 695.

[17]        
This is a case where there had been expenditures on medical and expert
reports.  I think that where it becomes clear that liability will be extremely
difficult to establish a nominal offer that has the effect of allowing the
plaintiff to recover disbursements and avoid liability for the other party’s
disbursements may nevertheless be a substantial offer.

[18]        
In considering whether the offer ought reasonably to have been accepted,
I think it was quite clear that the plaintiff’s original theory that she had
been sideswiped as a result of the collision involving the other two adjacent
cars was not maintainable once each side had filed their expert reports.  This
was not merely a case where the plaintiff had a claim that was difficult to
prove at trial; this was a unique case where on the evidence available to her
before trial the plaintiff should have realized that she did not have a
realistic position on liability.

[19]        
The relative financial circumstances of the parties are a factor that weighs
against awarding double costs in this case, although in appropriate
circumstances double costs clearly may be awarded to ICBC.

[20]        
I do not think the fact that the defendant drivers may have been
dishonest with ICBC about the circumstances involving the collision between the
Beynon and the Gilchrist vehicle has any bearing on whether costs should be
awarded to other parties, the owner of the vehicle and ICBC.

[21]        
Although it may have been difficult for the plaintiff to reconsider her
position after the experts’ reports were exchanged, it was incumbent on her,
notwithstanding any earlier settlement offer, to make a realistic assessment of
her prospects of success in the litigation.

[22]        
Accordingly, my decision as to costs is as follows.

[23]        
In the circumstances, I think that the ICBC defendants should be awarded
costs with respect to the main action.  I have estimated the main action
consumed 90% of the time at trial.  The defendants were clearly successful and,
in my view, it is not an appropriate order for each side to bear its own
costs.

[24]        
In terms of whether I should award double costs, I think that, in
exercising my discretion, the offer reasonably ought to have been accepted in
the days prior to trial.  Although the offer was modest, the circumstances at
that time were clear that her case was extremely weak, she would have avoided
liability for disbursements, and in fact recovered the disbursements she had
incurred.

[25]        
I award double costs for the period after two days prior to trial.

[26]        
Because ICBC had denied coverage, the defendant James Gilchrist,
appeared on his own behalf and attended the proceedings at trial.  Essentially,
he left it to Mr. Hulley to defend the plaintiff’s claim at trial.  As to
costs, he is entitled to claim them given that the action against him was
dismissed.  Mr. Gilchrist took a relatively modest position, seeking only
costs to compensate him for some of his lost time in attending trial.  In the
circumstances, I make a lump sum order for costs in his favour of $1,750.

[27]        
I award costs to the plaintiff for the second action up to seven days
after the offer to settle and thereafter ICBC is entitled to ordinary, but not
double, costs.  For purposes of apportionment of costs between the actions, the
main action took up 90% of the time at trial.

“J.S. Sigurdson J.”

The
Honourable Mr. Justice J.S. Sigurdson