IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120724

Docket: M129668

Registry:
New Westminster

Between:

Sylvia Lorraine
Cyr

Plaintiff

And

Larry Walter
Blaine

Fleet Wing
Enterprises Ltd.

Defendants

Before:
The Honourable Mr. Justice A. Saunders

Reasons for Judgment on Costs

[1]            
On June 6, 2012, following 2 ½ days of evidence and argument, I
pronounced judgment on the issue of liability for a motor vehicle accident. 
Quantum of damages had been agreed upon.  I found wholly in favour of the
plaintiff.  The plaintiff now seeks double costs of all steps taken after
delivery of an offer to settle on May 10, 2012.

[2]            
The background to the plaintiff’s offer to settle is as follows.  The
subject accident occurred on September 18, 2009.  A notice of civil claim was
filed in August 2010, and the pleadings were closed by October 2010.

[3]            
The defendants made a formal offer to settle in April 2011, in the
amount of $10,000. Examinations for discovery of both the plaintiff and the
defendant Mr. Blaine were conducted in July 2011. Quantum was settled on
April 17, 2012, in the amount of $60,000, with liability to be determined at
trial.

[4]            
The subject formal offer to settle was made on May 10, 2012, in the
amount of $50,000, plus costs in accordance with the Rules.

[5]            
On the application of the defendants made on May 18, 2012, it was
ordered that the witness Owen Davidson, who was a passenger in the defendants’
vehicle, undergo a deposition.  Mr. Davidson was deposed on May 22, 2012. Following
Mr. Davidson’s deposition, the defendant made a further formal offer to
settle in the amount of $30,000, plus 50% of the plaintiff’s costs, on May 28^th.

[6]            
The effect of my finding as to liability is that the plaintiff was
awarded the entirety of the agreed-upon damages of $60,000.  This being a Fast
Track proceeding, the plaintiff was also awarded costs of $11,000 plus HST,
pursuant to Rule 15-1(15)(c) of the Rules of Court, with leave to apply for
double costs.

[7]            
An award of double costs is discretionary.  Factors which the court may consider
in making such an award are enumerated in subrule 15-1(6).  Of those factors, I
consider the one which is most pertinent to the present case to be whether the
offer was one that ought reasonably to have been accepted, either on the date
of delivery or subsequently.

[8]            
The defendants say that there are several circumstances which militate
against liability for double costs.

[9]            
First, it is said that the subject offer made no explicit reference to
Rule 15-1.  Therefore, the defendants contend, had the offer been accepted, it
would have been open to the plaintiff to argue that costs could be assessed
without reference to Rule 15-1. I give no weight to this argument.  Subrule 15-1(15)
sets mandatory limits on the costs to which a party to a Fast Track action is
entitled.  These apply whether or not the Rule or subrule is specifically
referred to in the offer.  Moreover, if there was any ambiguity in the offer,
that could have been dealt with by the offer being accepted subject to costs
being assessed under subrule 15-1(15), or alternatively defence counsel could
have sought clarification.  But I find that there was no real ambiguity.

[10]        
Second, the defendants say that the offer could not reasonably been
accepted on the date it was served as Mr. Davidson had not, as of that
date, been responsive to questions put to him, and had not yet been deposed. 
However, given the evidence of the parties themselves of the circumstances of
the accident, it is hard to imagine what evidence Mr. Davidson could
possibly have given which would have mitigated the degree of the defendants’
liability.

[11]        
Finally, the defendants point to the fact that the plaintiff’s principle
theory of liability – that the defendant
Mr. Blaine had illegally crossed over into an area of painted hatched
lines, immediately before the intersection, in order to move around the vehicle
stopped ahead of him in his lane, to gain access to a left-hand turn lane – was disproven at trial.  The defendants say
that it was necessary to proceed to trial to resolve this issue.

[12]        
This theory was not, however, the only basis on which liability could
have been imposed, and ultimately the defendants’ liability was found on another
basis. That basis on which liability was ultimately found does not appear to
have figured in the defendants’ pre-trial assessment of their own liability.

[13]        
The defendants say that it was reasonable for them to try the case on
the basis of their theory that the plaintiff had a duty to look to her left as
she passed by the front of the vehicle that had stopped for her in the
intersection.  But even if the plaintiff had been under an obligation to
anticipate that there might be another vehicle in the same lane as the stopped
vehicle, attempting to pass that stopped vehicle on the left, the defendants
had no evidence that, by the time she would have been able to see the
defendants’ vehicle, she would have been able to bring her own vehicle to a
stop in time to avoid the collision, given the defendants’ speed.

[14]        
The defendant Mr. Blaine passed a stopped vehicle, on its left,
when he was in the same lane as that vehicle. As I found, it ought to have been
apparent to Mr. Blaine from the opening in the divider separating
eastbound and westbound traffic that he was passing through an intersection,
and that cars travelling in his direction had stopped to let a vehicle or
vehicles through the intersection. By the time the subject offer was delivered,
it ought to have been apparent to the defendants that they would be found wholly
or at least substantially liable for the accident.

[15]        
Given that damages had been agreed at $60,000, the plaintiff’s $50,000
offer represented a discount of roughly 17%, or, to put it another way, roughly
a 50% chance of a finding of one-third contributory negligence on the plaintiff’s
part.  It was an offer that reasonably ought to have been accepted upon
delivery.

[16]        
The plaintiff, I find, is entitled to double costs of all steps taken
after the offer was delivered.

“A. Saunders J.”