IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110929

Docket: M109696

Registry:
New Westminster

Between:

Bibi Olabisi Habib

Plaintiff

And

Robert
Montgomery Jack, Coast Mountain Bus Company Ltd. and Greater Vancouver
Transportation Authority (also known as TransLink)

Defendants

Before:
The Honourable Madam Justice Ross

Reasons for Judgment

Introduction

[1]            
This is an application for an order dealing with costs. The defendants
seek their costs of the proceeding throughout and double costs from April 9,
2010 based upon an offer to settle. The plaintiff seeks an order that each side
bear their own costs.

[2]            
The plaintiff, Ms. Bibi Habib, received an injury while a passenger
on the bus operated by the defendants Coast Mountain Bus Company Ltd. and
Greater Vancouver Transportation Authority (“TransLink”) and driven by Robert
Jack. Ms. Habib alleged that she was injured when the driver did not
reduce the speed of the bus when going over a speed bump. At the request of the
parties, the trial dealt solely with the issue of liability, quantum having
been settled prior to trial.

[3]            
The incident giving rise to the litigation occurred on June 7, 2006. The
incident was reported to TransLink shortly thereafter. TransLink provided Mr. Jack
with an Employee’s Incident Report to fill out on August 16, 2006.

[4]            
The trial had been originally scheduled to commence on May 31, 2010.
Examinations for discovery of both Ms. Habib and Mr. Jack were
completed in March 2009. By letter dated April 9 2010, the defendants offered
to settle on the following terms:

The defendants offer to pay the plaintiff the amount of $1,000.00
(“the amount offered”), after taking into account Part 7 benefits paid or
payable, pursuant to section 25 of the Insurance (Motor Vehicle) Act,
R.S.B.C. 1996, c. 231 and any advances paid to date, in satisfaction of
this proceeding in its entirety. The amount offered includes court order
interest assessed to the date of the delivery of this offer and excludes costs.

On acceptance of this offer, the parties agree that:

1.     The
plaintiff is entitled to necessary and reasonable disbursements only assessed
to the date of delivery of this offer; and

2.    The defendants are entitled to
costs at Scale B and necessary and reasonable disbursements assessed from the
date of delivery of this offer.

The offer was open for acceptance until May 28, 2010.

[5]            
The offer was not accepted and expired. Ms. Habib’s counsel was
then injured in an accident and unable to attend at trial. The trial was
adjourned until February 2011. The parties negotiated a settlement of the
quantum of damages that would be paid if Ms. Habib succeeded, and agreed
to proceed to trial on the issue of liability. The trial was set for two days.

[6]            
Ms. Habib’s claim was dismissed in reasons indexed at Habib v.
Jack, 2011 BCSC 399.

Are the Defendants entitled to costs?

[7]            
Rules of Court, R. 14-1(9) provides:

Costs to follow event

(9)  Subject to subrule (12), costs of a proceeding must be
awarded to the successful party unless the court otherwise orders.

[8]            
The defendants submit that they succeeded at trial and are therefore
entitled to recover costs. Ms. Habib submits that each party should bear
their own costs because:

(a)     The
reasons were silent with respect to that issue and accordingly counsel submits,
the court has effectively ruled that there will be no order with respect to
costs;

(b)     of
the defendants’ delay in investigating the report;

(c)     of
the plaintiff’s efforts to streamline the litigation.

[9]            
The plaintiff’s res judicata argument has previously been
considered and rejected by this court. In Graham v. Great West Life et al.,
2004 BCSC 1544, Sinclair Prowse J. considered the argument that silence in
earlier reasons for judgment regarding costs is tantamount to an order that
there will not be an order for costs. After reviewing the authorities she found
that if reasons are silent, by operation of Rule 57(9), there is a presumption
that costs will follow the event unless either party objects to the order being
framed in that manner, in which case an application for costs should be made to
the court. The present Rule 14-1(9) contains the same presumption.

[10]        
Ms. Habib argues that the court should exercise its discretion and deprive
the defendants of their costs.

[11]        
In LeClair v Mibrella Inc., 2011 BCSC 533, Voith J. provided the
following useful commentary with respect to the exercise of the court’s
discretion in this regard at para. 11:

First, Rule 14-1(9) is not
intended to provide an unsuccessful party with an opportunity to parse through
the litigation conduct of the opposing party searching for behaviour that might
be criticized. I do not say that the discretion which is conferred in Rule
14-1(9) is limited to exceptional cases. The Rule is not, however, intended to
address imperfect or less than optimal conduct. It is generally not intended to
address questionable judgment. Instead it provides the court with an objective
means of communicating its censure in relation to conduct that manifestly
warrants rebuke.

[12]        
In my view there is no evidence that the defendants’ conduct in the
litigation was such as to warrant a rebuke with respect to costs. The delay in
obtaining Mr. Jack’s statement was perhaps less than optimal but not in my
view unwarranted or worthy of censure. In addition, while Ms. Habib
contends that the course of the litigation would likely have been different if
his statement had been sought earlier, that is pure speculation.

[13]        
Finally, the parties settled quantum, which substantially reduced the
length of trial. This was an efficiency that was of benefit to both parties and
reduced the costs that would otherwise have been incurred. However, it is not,
in my view, a reason to depart from the presumption that the successful party
will recover its costs. Accordingly, the defendants are entitled to their costs
of the litigation.

Are the Defendants entitled to double costs?

[14]        
Rules 9-1(5) and (6) provide:

Cost options

 (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;

(c)            award to a party,
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, costs to which the party would
have been entitled had the offer not been made;

(d)            if the offer was
made by a defendant and the judgment awarded to the plaintiff was no greater
than the amount of the offer to settle, award to the defendant the defendant’s
costs 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.

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.

[15]        
The defendants submit that having regard to the factors enumerated in
the Rule, the court ought to award double costs. Counsel submits that the offer
was not nominal; it gave the plaintiff modest recovery and represented a
willingness to compromise that the Rule is meant to foster. The offer was made
at a time when the discoveries of both parties were complete and the evidence
was known. The plaintiff’s position is that this was a nuisance offer and it
cannot be said, without applying hindsight, that it ought to have been
accepted.

[16]        
At the time the offer was made, it was clear that the plaintiff had
suffered an injury. There was a dispute with respect to liability. Mr. Jack
had limited recollection. The only two witnesses were Ms. Habib and Mr. Jack.

[17]        
In my view the offer was nominal given Ms. Habib’s injury. I agree
with the observations of Burnyeat J. in Martin v Lavigne and Neufeld (Costs),
2010 BCSC 1610 at para. 13, that there are situations in which a nominal
offer should have been accepted. However, in my view this is not such a case.
It cannot be said that it was clear that the action had little chance of
succeeding on the merits. Rather, there was a significant risk that the case
would be lost on liability. This risk materialized and the action was lost at
trial; however, in the circumstances it was not unreasonable for the plaintiff
to reject the offer and proceed to trial.

[18]        
On balance I have concluded that this is not a case to make an order for
double costs as sought by the defendants based upon the offer to settle. In the
result, the defendants will have their costs. Under s. 84(1) of the Insurance
(Vehicle) Act, R.S.B.C. 1996, c. 231, the Insurance Corporation of
British Columbia (“ICBC”) is subrogated to its insured and is entitled to
recover the costs to which the insured would be entitled. Accordingly, ICBC is
entitled to recover the costs awarded to the defendants.

“Ross J.”