IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20111209

Docket: M073918

Registry:
Vancouver

Between:

Dianne Mazur

Plaintiff

And

Lawrence Lucas,
Primus Automotive Financial Services Canada Company, Compagnie De Services De
Financement Automobile Primus Canada and Jon Haddon Moss

Defendants

Before:
The Honourable Madam Justice Humphries

Reasons for Judgment

[1]            
This is a dispute over costs of a jury trial with a complicated history.

[2]            
The action arose out of a motor vehicle accident in 2006.  Liability was
admitted.

[3]            
The matter first went to trial before a jury in October 13, 2009.  On
October 29, 2009, after deliberating from 2:00 p.m. October 28, 2009 to 3:00
p.m. on October 29, the jury awarded the plaintiff damages totalling $528,400,
plus costs and disbursements (non-pecuniary damages: $55,000; past loss of
income: $145,000; future loss of income: $307,000; special damages: $3,400;
future care cost: $8,000).  At the time of the first trial, the defendants had
provided a formal offer to settle in the amount of $60,000.

[4]            
The parties agreed that costs would be $61,600, and on March 16, 2010 a
certificate was obtained in that amount from a registrar because the plaintiff
wished to execute on the judgment.

[5]            
Meanwhile the defendants had filed a notice to appeal on November 25,
2009.

[6]            
Counsel for the defendants on the appeal negotiated an advance payment
to the plaintiff of $250,000 in exchange for a stay of execution of the trial
judgment.  The cheque was delivered on December 24, 2009.  After the plaintiff
signed an “ICBC Advance Payment Agreement”, an assignment of her disability
insurance and a mortgage, the funds were released to her in February of 2010.

[7]            
The appeal was heard on September 9, 2010.  The Court of Appeal allowed
the appeal on October 28, 2010, set aside the judgment from the first trial,
and ordered a new trial.  The appellants were to have their costs of the
appeal, and the costs of the first trial were left to the discretion of the
judge presiding at the second trial.

[8]            
The second trial commenced August 29, 2011 before me, with a jury.  On
August 17, 2011, a few days before the second trial was to commence, the
defendants filed an offer to settle in the amount of $300,000 plus costs.  The
plaintiff countered two days later with an offer of $600,000.

[9]            
On September 19, 2011, the jury, after deliberating from 3:10 p.m. to
6:12 p.m., returned with an award of $84,000 (non-pecuniary damages:
$25,000; past loss of income: $53,000; special damages: $6,000; future loss of
income: $0; cost of future care/housekeeping: $0).

[10]        
The plaintiff seeks her costs of the two trials.  The defendants seek
their costs of the first trial, and their costs of the second trial from the
date of the advance payment, December 24, 2009, or alternatively from the day
of the offer to settle, that is, August 17, 2011.

COSTS OF THE FIRST TRIAL

[11]        
I see no reason why the plaintiff should not have her costs of the first
trial.  Counsel for the defendants cited a number of cases dealing with costs
following a successful appeal (Walker (Re) (2010 BCSC 489; P.G.
Restaurant Ltd. v. Cariboo Press (1969) Ltd. 2006 BCCA 280) but here, the
only issue at trial was the amount of damages.  The appeal turned on a narrow
legal ruling on expert reports.  The damages award was not the subject of the
appeal.  The defendants did not argue that the plaintiff’s action should be
dismissed on the basis that she did not suffer any loss.  It is clear that, if the
defendants were successful on the appeal, there would have to be a new trial. 
If the Court of Appeal were of the view that success on the appeal meant that
the appellants would receive their costs of the first trial, they had only to
say so.  They left the matter outstanding, to be decided by the judge on the
second trial.  The only reasonable inference is that costs of the first trial
should be considered in light of the award on the second trial.

[12]        
The only offer prior to the first trial was one for $60,000.  Both jury
awards exceeded that amount.

[13]        
The plaintiff is entitled to her costs of the first trial.

COSTS FOLLOWING THE ADVANCE PAYMENT

[14]        
The defendants argue that the plaintiff should be deprived of her costs
of the second trial as of December 24, 2009, the date on which the negotiated
agreement was signed.  They cite cases dealing with situations in which awards
at trial are less than an advance, and in which plaintiffs have been deprived
of costs as of the date of the advance (McElroy v. Embelton (1996), 19
B.C.L.R. (3d) 1 (B.C.C.A.); Baxter v. Brown (1997), 28 B.C.L.R. (3d) 351
(B.C.C.A.).

[15]        
However, those cases are all advances before trial.  The basis on which
the Court of Appeal in those cases concluded that the date of the advance was
relevant to costs was because the plaintiff “had in hand more at the start of
the action than the amount of the jury’s verdict.” (see McElroy).  The
plaintiff, upon receipt of an advance, must realistically assess his or her
claim knowing that proceeding to trial carries a risk in costs (Carey v.
McLean, 1999 BCCA 222).

[16]        
This advance was one paid to avoid execution on an existing judgment,
pending an appeal that would proceed regardless of whether the plaintiff wished
to accept the money in final settlement of the action or not.  That option was
not open to her.  The agreement signed by the plaintiff required repayment if a
new trial were ordered and the results were not favourable to her, but did not
give her the option of accepting the money and ending the proceedings.  This
advance payment, unlike those in the cases cited by the defendant, is not the
equivalent of an offer to settle.

[17]        
The date of the advance is not appropriately considered in these
circumstances.

THE SECOND OFFER TO SETTLE AND THE RESULT OF THE SECOND
TRIAL

[18]        
Rule 9-1(5) provides:

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 judgement 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.

[19]        
Rule 9-1(6) provides:

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
consider appropriate.

Positions of the parties

[20]        
Rule 9-1(6)(a): Counsel for the plaintiff points to the award on the first
trial, which was much higher than the second offer, and submits that his client
was reasonable in rejecting the defendants’ second offer.  Although counsel for
the appellants had told him they might raise the issue of damages on appeal,
they did not, so no issue was taken with the amount itself.  There was no
argument that a reasonably instructed jury could not have awarded that sum.  It
was never an issue that the plaintiff had been injured in the accident and she
developed a pain disorder as a result.  The evidence on the second trial was
much the same as the first.  The plaintiff could reasonably have expected a
similar award.

[21]        
Counsel for the defendants says the plaintiff ought to have realized
that, the first award having been obtained as a result of erroneous rulings,
any future award could not reasonably be expected to be in the same range. 
Jury awards are subjective and often vary widely.  As well, the trials were
sufficiently different that it was not reasonable to expect the same result on
the second trial.

[22]        
Rule 9-1(6)(b): There is no question but that the offer made on August
12, 2011 was higher than the award at trial.

[23]        
Rule 9-1(6)(c): Counsel for the plaintiff says it is proper to take into
account the relative financial circumstances of the parties.  Whereas the
defendant is in reality an insurer with large resources, Ms. Mazur has very few.

[24]        
Ms. Mazur estimates the equity in her condominium to be about $94,000. 
She owns a twelve year old vehicle and has about $800 in RRSP’s.  She has
credit card and line of credit debts of over $9,000.  The disbursements from
the first trial were over $30,000; she owes about $16,000 in appeal costs to
the defendants; the disbursements on the second trial were about $40,000.

[25]        
The defendants say they should be considered as individuals, not as
parties with insurance.  They submit that the fact that they are covered by
insurance is irrelevant and is an inappropriate consideration, relying on cases
which I will discuss below.

[26]        
Rule 9-1(d): Counsel for the plaintiff submits that the defendants made
no use of the ruling they obtained from the Court of Appeal.  They were simply
unhappy with the first jury award and hoped for a better result on the second. 
As well, a costs award against the plaintiff will wipe out any award she might
receive.

[27]        
The defendants say there were significant differences between the two
trials, and the award in the second was largely dependent on the results of the
appeal.  As well, it is not appropriate for the court to concern itself with
whether an award of costs will eradicate any recovery on the part of the
plaintiff.

DISCUSSION

[28]        
Rule 14-1 (9) sets out the general rule that costs follow the event
unless the court otherwise orders.  The court’s discretion in relation to costs
under the present rules is unfettered (Bailey v. Jang, 2008 BCSC 1372).  Rule
9-1(4) states that the court may consider an offer to settle when exercising the
court’s discretion in relation to costs.

[29]        
Rule 9-1(6), as set out above, provides some considerations the court
may take in to account in exercising its discretion.

[30]        
I will consider the factors in Rule 9-1(6) in reverse order, beginning
with (d) because this case is unusual in that it is a retrial of a civil jury
trial directed by the Court of Appeal, and the nature of the appeal as well as
the effect and result of the order of the Court of Appeal are relevant to other
considerations.  If, as the plaintiff argues, the defendants used their greater
resources to pursue an appeal that was ultimately of no significance to them
merely in hopes of getting a better result the second time, this would be a
relevant consideration on costs.

(d) Other factors

The effect of the judgment of the Court of Appeal

[31]        
The issue before the Court of Appeal was a narrow one – whether the
previous trial judge had erred in ruling that expert reports tendered in
evidence must be edited to remove references to hearsay opinions of other
experts who were not testifying and whose reports were not before the court,
and that counsel for the defendant could not cross examine on those hearsay
opinions.

[32]        
While other properly tendered reports were similarly edited, the report
of particular concern was that of Dr. O’Shaughnessy.  He referred to and relied
on the opinions of two doctors, Gibson and Solomons, who would not be
testifying and whose reports would not be before the court.  The previous trial
judge ruled that he could not refer to those reports and counsel could not
cross-examine him on them.

[33]        
The substance of the position taken by the defendants on appeal is set
out at para. 15 of the decision of the Court of Appeal found at 2010 BCCA 473:

At trial, defence counsel argued
that in light of Dr. O’Shaughnessy’s apparent reliance on the opinions of Drs.
Gibson and Solomons, she was entitled to cross-examine Dr. O’Shaughnessy on
those opinions. She submitted that, for example, she was entitled to ask Dr.
O’Shaughnessy why he had accepted certain aspects of the opinions of Drs. Gibson
and Solomons, as noted in his report, but did not mention other aspects that
were favourable to the defence position.

[34]        
The Court said at para. 43:

It follows from this discussion that I conclude the trial judge
erred in her twin rulings to redact the export reports and confine defence
counsel’s cross-examination. The trial judge should have permitted defence
counsel to fully cross-examine Dr. O’Shaughnessy on his review of the reports
of Drs. Solomon and Gibson.

In summary, the hearsay referred
to by Dr. O’Shaughnessy in his report was admissible, for the limited purpose
of evaluating his opinion, not as proof of its facts.  The references in his
(and other expert reports) should not have been redacted.  Cross-examination on
the use the expert made of the hearsay evidence should have been allowed.  This
cross-examination might have revealed some inconsistency in the doctor’s
report, or some weakness in his analysis.

[35]        
This error was seen to be of sufficient importance to warrant a new trial. 
The court said at para. 49:

In this case, the method which the trial judge utilized to
deal with the hearsay evidence in Dr. O’Shaughnessy’s report left the jury with
a potentially distorted and incomplete picture of his expert opinion, one that
might have been challenged had cross-examination of the doctor not been
curtailed.

The jury awarded $307,000 for future loss of earning
capacity….The opinion of Dr. O’Shaughnessy was central to this critical issue
the jury had to resolve.

In my view the errors committed by the trial judge were
prejudicial to the defendant. These errors amounted to a substantial wrong or
miscarriage of justice because a jury apprised of all the relevant information
might very well have arrived at a different verdict.

In my view it cannot be said
that the defendants received a fair trial. The errors the trial judge made may
have resulted in pivotal evidence being withheld from the jury.  I would order
a new trial.

[36]        
The substance of the judgment of the Court of Appeal and its effect on
the second trial is an important consideration in the submissions of both
counsel.  The plaintiff contends that, despite the Court of Appeal’s concerns
about the improperly restricted cross-examination, the defendants did nothing
different in the second trial.  The trial was, in all material respects, a
repeat of the first trial.  The defendants did not cross examine Dr.
O’Shaughnessy on the matters that had apparently been of concern during the
appeal, and obviously simply wanted a second go-round with a different jury as
they were not happy with the verdict from the first.

[37]        
Counsel for the defendants says the results of the appellate judgement
significantly affected the verdict of the jury in the second trial, which was
substantially different from the first.  She says a full exploration of the
plaintiff’s pre-accident disability was not allowed in the first trial.  She
says it was significant that she was not allowed to refer to the records of Dr.
Gibson, the pre-accident treating psychiatrist, in the first trial, and
references to his opinion were edited from Dr. O’Shaughnessy’s report.  As
well, the defendants called additional witnesses, including Dr. Solomons, one
of the witnesses whose mention was edited from Dr. O’Shaughnessy’s report. 
In the second trial, the defendants were allowed unrestricted cross-examination
on documents which had not been allowed on the first trial.  The plaintiff also
called two extra witnesses who had not testified at the first trial: a cost of
future care expert and the plaintiff’s treating psychiatrist, Dr. Parker.

[38]        
A particularly significant factor from the defendants’ point of view,
which I gather was not pursued on the first trial, emerged during the
cross-examination of the psychiatrists and of Ms. Mazur herself.  This was a
suicide attempt by Ms. Mazur when she was 17, following a particularly
devastating event – the suicide of her younger sister whom she was looking
after at the time.  Ms. Mazur is now 59.  She mentioned this event to a
counselling group she was attending prior to the accident, and it appeared in
their records.  Dr. Janke thought the failure to mention this previous event to
the various psychiatrists was of concern.  Dr. O’Shaughnessy did not have the
counselling records available to him when he wrote his report, but he was of
the opinion that the intervening 35 years of a highly functional life was more
significant and would give this event little weight.

[39]        
It is difficult for me, of course, without reading and comparing each
transcript and the volumes of documents that were used in each trial, to
determine exactly where the significant differences were, if any, between, the
two trials in an attempt to establish exactly what made such a difference to
the second jury.  The issue on which they differed from the first jury was the effect
of Ms. Mazur’s pre-existing disability on her capacity to earn income.  Whereas
the first jury found that Ms. Mazur’s future loss was caused by the
accident and made a substantial award, the second jury did not and made no
award for future loss.  The past wage loss award on the second trial was also
considerably lower than the first.

[40]        
In general terms, the second jury’s verdict means they accepted the
defence theory supported by Dr. Janke (that although the plaintiff had
developed a pain disorder as a result of the accident, she would have
difficulty returning to work in any event due to her pre-existing problems of
depression and anxiety), and rejected the plaintiff’s theory put forward by Dr.
O’Shaughnessy and Dr. Parker (that her depression was in remission and it was
the pain disorder caused by the motor vehicle accident that was continuing to
render her unemployable).  Unfortunately for the plaintiff, Dr. O’Shaughnessy
disagreed fairly vehemently with Dr. Parker on the diagnostic criteria of a
psychiatric pain disorder, as did Dr. Janke, but all agreed that Ms. Mazur’s
depression was well controlled with medications.

[41]        
The sentences re-inserted in Dr. O’Shaughnessy’s report as a result of
the ruling of the Court of Appeal, which referred to the opinions of Drs.
Gibson and Solomons, were all in favour of the plaintiff, so their inclusion
cannot explain the difference between the two verdicts.  Since Dr. Gibson was
not available to either side, his opinions could not have been before the jury
in either trial.  The significance of the editing to the Court of Appeal was
that the defendants were not allowed to cross-examine Dr. O’Shaughnessy on Dr.
Gibson’s opinion, whatever it might have been.  The jury could then have been
instructed on the weight to be given to Dr. O’Shaughnessy’s report after
this cross-examination.

[42]        
Despite the unedited report put before the jury on the second trial, Dr. O’Shaughnessy
was not cross-examined on his references to Dr. Gibson’s and Dr. Solomon’s
opinions, other than to say that he relied on their opinions that Ms. Mazur’s
depression worsened after the accident.  Whenever he was referred in
cross-examination to the reports of either doctor, which was seldom, he said he
deferred to them or agreed with them.  Thus the concern that was manifest in
the Court of Appeal’s judgment did not materialize in the second trial.

[43]        
Dr. Solomons, who was called by the defendants on the second trial,
provided an opinion for Ms. Mazur’s employer’s insurance plan and played a
limited role early in the history of Ms. Mazur’s psychological treatment.  He
said she had no disabling psychiatric condition when he saw her.  He was not
asked to deal with the motor vehicle accident and did not give an opinion on
pain disorder.

[44]        
From my view of the evidence, there was no compelling reason to accept
Dr. Janke’s opinion over that of Dr. O’Shaughnessy and Dr. Parker that Ms. Mazur’s
depression was in remission and expected to remain so, and that it was the pain
disorder caused by the accident that was keeping her from functioning
adequately to return to work.  If anything, Dr. O’Shaughnessy’s opinion seemed
to be more in keeping with the rest of the medical diagnoses and evidence.  Dr.
Janke agreed on many points with Dr. O’Shaughnessy, including that Ms. Mazur’s
depression was in remission.  Nevertheless, Dr. Janke expressed skepticism
about whether the plaintiff had overcome her pre-existing disability.  Whereas the
jury on the first trial must have accepted Dr. O’Shaughnessy’s opinion; the
jury on the second must have accepted Dr. Janke’s.

[45]        
Although the two trials were not the exactly the same, the important
point to the plaintiff is that the appeal turned on prejudice to the defendants
from restrictions on cross examination of Dr. O’Shaughnessy because there were
apparently portions of the reports of Drs. Gibson and Solomons that were not
favourable to the plaintiff and upon which Dr. O’Shaughnessy should have been
questioned.  However the desired cross-examination which the defendants argued
on appeal was crucial and should result in a new trial did not occur in the
second trial.

[46]        
There is an arguable inference, as urged by the plaintiff, that the
defendants were able to use their resources to pursue an appeal in hopes of
getting a better result on a second trial, and not because they were really
prejudiced by the edited reports.  If that were so, they could not
appropriately assert a claim for costs.  However, in more general terms, it is
a reasonable inference that the defendants felt they had been prevented at the
first trial from fully pursuing their position and considered it necessary to
clarify the law on the use of hearsay in expert reports.

[47]        
In any event, there were differences between the two trials, some small,
some more significant.  However, in my view it is difficult to say that the verdicts
differ so substantially because of the ruling of the Court of Appeal.

(c) Relative financial circumstances

[48]        
Many cases have considered this issue.  Some judges of this court have
held that the availability of insurance is not relevant to “financial
circumstances” (see Bailey v. Jang, supra.  Later decisions have
held that insurance is relevant to financial circumstances (Martin v.
Levigne, 2010 BCSC 1610; Khunkhun v. Titus (8 September 2011),
Vancouver M083559 (B.C.S.C.).

[49]        
In Smith v. Tedford, 2010 BCCA 302, the defendant had resisted
accepting an offer to settle until well on into the trial, which was before a
jury at the defendant’s request, and the plaintiff sought double costs.  In
upholding the trial judge’s decision to award double costs to the plaintiff,
the Court of Appeal stated, after considering the conflicting decisions in the
trial court at para. 22:

While I recognize arguments over
the implications of a defendant’s insurance coverage being considered in
relation to an award of costs may go back and forth, like the judge I consider
precluding such from consideration renders an assessment of the parties’
relative financial circumstances, at least in a case of this kind, very
artificial indeed.

[50]        
The defendants argue before me that Smith is confined to its
facts.  They rely on Hunter v. Anderson, 2010 BCSC 1591, in which the
court said, referring to Smith, that insurance coverage becomes relevant
“where a defendant’s insurance coverage creates an unfair advantage leading to
unnecessary costs through testing the plaintiff’s case”.

[51]        
The defendants say this is further supported by a recent case of the
Court of Appeal, A.E. (litigation guardian of) v. D.W.J. 2011 BCCA 279. 
In that case, the court considered the issue of whether, as a matter of
statutory interpretation under the previous iteration of the rule, a defendant
is entitled to an award of single costs, rather than double costs, if their
offer exceeds the amount at trial.  The court did not comment on the trial
judge’s statement that “the wording of Rule 37B(6)(c) [the same wording as Rule
9-1(6)(c)] does not allow the court to consider the defendant’s insurance
coverage”.

[52]        
I do not read Smith as limiting a consideration of insurance
coverage to its specific facts, and the judge in Hunter used general language
when describing his interpretation of the circumstances in which insurance
coverage was a relevant consideration – “where it creates an unfair advantage
leading to unnecessary costs through testing the plaintiff’s case”.  The Court
of Appeal in A.E., supra, was not asked to consider this issue and did
not do so.

[53]        
In my view, the statement in Bailey, supra, that the factor of
relative financial circumstances “does not invite consideration of the
defendant’s insurance coverage” has clearly been overtaken by Smith.  While
insurance coverage is not automatically a factor to be considered against the
insured party, the facts of the particular case will govern whether it should
be considered, and if so, what weight should be given to it.

[54]        
In this case, the plaintiff was injured.  The defendants have not only admitted
liability, but their own evidence supports causation for soft tissue injuries
and a pain disorder resulting from the accident.  The plaintiff, having
received a generous award from the jury on the first trial, was required to
defend the award at an appeal based on alleged errors of the trial judge in
making particular rulings pertaining to expert reports.  She lost on appeal,
must pay the defendants’ costs of the appeal, and was required to face a new
trial.  At the new trial, the primary points of concern to the Court of Appeal
were not pursued.

[55]        
I have been unable to find that the trials, though similar, were
identical.  There were, as I have noted, some differences.  Nevertheless, I
think that the relative financial circumstances of the parties should be given
some consideration in these particular circumstances.

(b) the relationship between the terms of the settlement
offered and the final judgment of the court

[56]        
The defendants made an offer of $300,000 plus costs on August 17, 2011. 
The jury awarded $84,000.  The final judgment was obviously much less that the
terms of the settlement offered.

(a) Ought the plaintiff reasonably to have accepted the
offer of August 2011?

[57]        
Whether the offer made in August should reasonably have been accepted cannot
be determined through hindsight, or by reference to the judgment ultimately
pronounced (Hartshorne v. Hartshorne, 2011 BCCA 29).

[58]        
The plaintiff had received a much higher award from the first jury. 
Should the defendants’ success on appeal have compelled the plaintiff to
discount the first award and accept the second offer, which was three/fifths of
the first award?

[59]        
The information before me for the second trial was that both parties had
chosen to have the second trial tried by a jury.  I do not have information
about the first trial.

[60]        
The awards in civil jury trials are unfortunately (although
understandably, given that they receive no instructions on ranges of damages)
very difficult to predict or explain.  They sometimes even seem random and arbitrary.
However, the vagaries of the civil jury system should not be a basis for
compelling a plaintiff to accept an offer simply because juries are so
unpredictable.

[61]        
The defendants did not appeal the amount of the damages awards.  The point
on which the defendants were successful on appeal was, as I have stated, not
taken up on the second trial, at least in respect of Dr. O’Shaughnessy, who was
the focus of the Court of Appeal decision.  I am not persuaded that this was,
overall, such a telling point in the circumstances of this case that it should
have caused the plaintiff real apprehension as she considered the offer in the
context of the upcoming second trial.  The defendants’ position that they were
liable for the accident and that the plaintiff had developed a pain disorder as
a result of the accident was unchanged.  Dr. O’Shaughnessy’s position was the
same on both trials: the plaintiff’s depression was in remission and she
remained disabled as a result of the pain disorder.  This position was supported
on the second trial by Dr. Parker, despite the disagreement on diagnostic
criteria.  Dr. Janke also agreed Ms. Mazur had a pain disorder caused by the
accident, although he differed on his assessment of the effect of her
pre-existing disability.

[62]        
This court has stated many times that parties should be encouraged to
settle, and if unreasonable in not doing so, may be punished in costs.  As
well, the fact that an award of costs against a party may wipe out their award
of damages is not determinative.  However, given all the circumstances that
existed at the time the offer was made which did not change throughout the
trial, I am not persuaded that the plaintiff ought to be denied her costs on
the basis that she ought reasonably to have accepted the offer that was made twelve
days before the trial began.  Having in mind the amount of the first award, the
narrow issue upon which a new trial was ordered, the amount of the second
offer, and the expected similarity of the evidence at the second trial, the
plaintiff was reasonable in deciding not to accept the offer and to have the
action adjudicated by a second jury.

Result

[63]        
In all of the circumstances, including the factors in Rule 9-1(6) and
the submissions of the parties, the plaintiff should have her costs of the
second trial.

[64]        
As stated earlier in these reasons, the plaintiff will have her costs of
the first trial.

[65]        
All costs will be at Scale B.

“M.A.
Humphries J.”
The Honourable Madam Justice M.A. Humphries