IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120704

Docket: M125619

Registry:
New Westminster

Between:

Laurene Dawn
Bartel

Plaintiff

And

Amanda J. Milliken
and John Thomas Milliken also known as John T. Milliken

Defendants

Before:
The Honourable Madam Justice Gerow

Reasons for Judgment
Re: Costs

[1]            
Amanda Bartel applies for double costs of this action from March 14,
2012, the date on which she delivered an offer to settle. On February 18, 2010,
Ms. Bartel commenced an action for personal injuries she sustained in a motor
vehicle accident in 2008. The defendants delivered a statement of defence on
June 21, 2010. This matter proceeded to trial on March 21, 2012, for three days.

[2]            
On March 14, 2012, Ms. Bartel delivered an offer to settle in the amount
of $29,800. After the trial ended and before judgment was delivered, Ms. Bartel
withdrew her offer to settle. On April 18, 2012, a judgment was released in
which Ms. Bartel was awarded damages in the amount of $38,533. The reasons provided
that Ms. Bartel was entitled to her costs under Rule 15-1(15) of the B.C.
Supreme Court Civil Rules, B.C. Reg. 168/2009 for a three day trial in the
amount of $11,000, subject to submissions.

[3]            
The defendants submit that the Court should not exercise its discretion
to order double costs from the date of the offer because the offer to settle
was withdrawn after the trial but before the judgment was rendered. The
defendants take the position that the offer did not specify it was in effect
only until the commencement of the trial, and the plaintiff should not be able
to rely on the offer because they withdrew it.

Analysis

[4]            
The applicable rule is Rule 9-1 which provides in part:

(1) In this rule, “offer to settle” means

…

(c) an offer to settle made after
July 1, 2008 under Rule 37B of the former Supreme Court Rules, as that rule
read on the date of the offer to settle, or made under this rule, that

(i) is made in writing by a party
to a proceeding,

(ii) has been served on all parties
of record, and

(iii) contains the following
sentence: “The …………[party(ies)]…………, …………[name(s)
of party(ies)]…………, reserve(s) the right to bring this offer to the
attention of the court for consideration in relation to costs after the court
has pronounced judgment on all other issues in this proceeding.”

  …

(4) The court may consider an offer to settle when exercising
the court’s discretion in relation to costs.

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

…

(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;

…

(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.

[5]            
Rule 9-1 makes it clear that the decision whether to award double costs
from the date of an offer is discretionary as Rule 9-1(5) is permissive. The
factors to be taken into account in exercising the court’s discretion are those
set out in Rule 9‑1(6).

Was the offer one which should have reasonably been accepted, either on the
date it was delivered or on any later date?

[6]            
The first factor to consider is whether the offer to settle was one that
ought to have reasonably been accepted on the date that the offer to settle was
delivered or on a later date. Ms. Bartel takes the position that at the time
she delivered her offer to settle the defendants had all of the necessary facts
and opinions they needed to assess the reasonableness of the offers. Ms. Bartel
was assessed and treated by her family doctor and an expert in physical
medicine and rehabilitation whose reports were provided to the defendants well
in advance of the trial and before her offer to settle. The reports contained
opinions regarding the cause, nature and extent of Ms. Bartel’s injuries,
as well as the effect of the injuries on Ms. Bartel’s life.

[7]            
The defendants argue that the offer to settle did not set out a
rationale for it or provide a breakdown of the various heads of damages. The
defendants submit that because there was no rationale for the offer to settle
or breakdown into the various heads of damages they were unable to assess and
evaluate the offer. They argue that as a result Ms. Bartel has not satisfied
the onus on her to establish the offer was one that ought reasonably to have
been accepted.

[8]            
However, at the time the offer was delivered the defendants had conducted
an examination for discovery of Ms. Bartel in October 2010 and had the
opportunity to assess the medical reports. They chose not to have Ms. Bartel
examined by an independent medical expert.

[9]            
In my view, the defendants had sufficient information to assess the
offer at the time they received it. In the circumstances, I am of the opinion
that the plaintiff has established that the offer should reasonably have been
accepted by the defendants, either on the date it was delivered or before the
trial of this matter.

The relationship between the terms of settlement offered and the final
judgment of the Court

[10]        
The next factor to consider is the relationship between the terms of
settlement offered and the final judgment of the Court. Ms. Bartel takes the
position that there was ample evidence to support the damage award and that the
awards under the various heads of damages were reasonable in the circumstances.

[11]        
Ms. Bartel’s offer was for approximately 75% of the amount she was
ultimately awarded. This factor weighs in favour of an award of double costs
from the time the offer was delivered.

The relative financial circumstances of the parties

[12]        
The next factor to be considered is the relative financial circumstances
of the parties. There is very little information about the relative financial
circumstances of the parties. Ms. Bartel submits that the Court should consider
that the defendants’ insurer was involved in the defence of this matter, and
not only to the named defendants for the purposes of comparing the relative
financial circumstances of the parties: Radke v. Parry, 2008 BCSC 1397; Smith
v. Tedford, 2009 BCSC 905.

[13]        
However, there is also case law to support the proposition that the
wording of the rule does not invite consideration of the defendants’ insurance
coverage: Bailey v. Jang, 2008 BCSC 1372.

[14]        
Given the very limited information about the parties’ financial
circumstances, it is my view that this factor is neutral in the assessment of
whether or not double costs should be awarded.

Any other factor the Court considers appropriate

[15]        
As stated earlier, the defendants submit the fact that Ms. Bartel
withdrew her offer after trial is a factor which weighs against the awarding of
double costs because it deprived the defendants of the ability to accept the
offer at a later date as contemplated by the rule.

[16]        
However, at the same time the defendants concede that the intention and
spirit of the rule governing formal offers to settle is to avoid the cost of a
trial. In my view, the fact that Ms. Bartel withdrew her offer to settle
between the time the trial ended and judgment was rendered is not a factor that
weighs against an award of double costs.

[17]        
As well, the defendants argue that the trial could have been completed
in two days as opposed to three days, and that if there is going to be an award
of double costs it should only include two days. However, the trial took three
days to complete. The defendants have provided no authority for the proposition
that because a trial should have been done more efficiently, a party presenting
an offer prior to the trial should be penalized. As well, that would require an
assessment of the reason for the delays, and there is insufficient evidence to
make that assessment.

[18]        
The defendants also argue that any award of double costs should not
include an amount for pre-trial preparation because the offer was delivered
seven days prior to the commencement of the trial and they were entitled to a
reasonable time to assess the offer. I agree that given the timing of the
offer, Ms. Bartel would have had to incur at least some of the preparation
costs for the trial even if the offer had been accepted. Rule 9-1(5)(b) provides
that a court may 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. Given
the timing of the offer, I am of the view that any award for double costs
should not include an amount for trial preparation but only for the trial
itself.

[19]        
Ms. Bartel also seeks an award of $500 for the costs of this application.
However, this matter was addressed through written submissions on a summary
basis, without the necessity for a formal application.

Conclusion

[20]        
Having considered the various factors under Rule 9-1, I am of the view
that this is an appropriate case in which to exercise my discretion under the
rule to award double costs for the trial. Accordingly, Ms. Bartel is entitled
to double costs of the trial or the amount of $4,500 for the three-day trial.

“Gerow
J.”