IN THE SUPREME COURT OF BRITISH
COLUMBIA

Date: 20130426

Docket: S127012

Registry:
New Westminster

Between:

Ann Tripp also
known as Anna MacDonald

Plaintiff

And

Dr. Ehud Ur, Dr.
David L. Kendler, Providence Health Care Society doing business as St. Paul’s
Hospital, Vancouver Coastal Health Authority doing business as Vancouver
General Hospital, Dr. David Harris, Dr. Stuart Kreisman, Dr.
Francesco Gaillard, Dr. Jason Chew, Dr. Philip Harrison, Maureen Doe, Tracy Doe
and Jane Doe

Defendants

Before:
The Honourable Mr. Justice Savage

Oral Reasons for Judgment

Table of Contents

I.  Introduction. 3

II.  The Adjournment
Application. 3

III.  Is the Matter Appropriate
for a Summary Judgment Application. 6

IV.  The Summary Judgment
Applications. 9

A.  Standard
of Care. 9

B.  Causation. 11

V.  Conclusion. 15

I.        Introduction

[1]            
There are three applications before me:  the defendant doctors and the
defendant health authorities seek summary judgment dismissing the plaintiff’s
claims for medical negligence; the plaintiff seeks adjournment of the summary
judgment application, and ancillary orders. The plaintiff is now
self-represented although intelligent and articulate. She demonstrates a keen
focus on the medical issues that bring her before the court. In argument she
referred to various case authorities.

[2]            
The plaintiff claims that the defendant physicians were negligent for
failing to diagnose and treat an alleged pituitary tumour and consequent
Cushing’s disease. This condition is characterized by excess cortisol
production due to the presence of a hormone-secreting pituitary tumour.

[3]            
The plaintiff also claims that certain hospital staff were negligent in
failing to follow proper protocol during a pituitary stimulation (insulin
intolerance) test. This contributed to a misdiagnosis or non-diagnosis. Thus,
the defendant health authorities are vicariously liable. The health authorities
deny liability but acknowledge that if liability is proven, they are vicarious
liability for the actions of their staff but not for the physicians who are
independent contractors.

II.       The Adjournment Application

[4]            
Following submissions, I dismissed the adjournment application and
advised that reasons for dismissing the  application would follow later. These
are those reasons.

[5]            
The plaintiff put forth six reasons for seeking an adjournment. Those
reasons are:  (1) the matter is complex, and not suitable for a summary
judgment application; (2) the plaintiff has short notice of the application; (3)
the plaintiff wants to cross-examine the defendants’ physician experts; (4) the
plaintiff wants to conduct examinations for discovery; (5) the plaintiff’s
health issues warrant an adjournment; and (6) there are other contrary opinions
from other qualified persons.

[6]            
Regarding the complexity of the matter, I note that the plaintiff very
recently has issued a notice of jury trial. With respect to the admissible
evidence before me however, there is only one set of admissible opinions. Those
are the opinions of the treating physicians and the opinions of the defendants’
medical experts. Those opinions do not conflict.

[7]            
In any event, as I advised the plaintiff, she is at liberty to raise
this objection to the summary trial application. The complexity of a proceeding
is not, per se, a ground for the adjournment of a proceeding. It may be a good
reason for a court to decline to entertain a summary judgment application in
limited circumstances, such as where there is insufficient time to explain and
argue the issues. That did not occur here.

[8]            
The second ground the plaintiff raises is short notice of the
application. Four expert reports were served February 1, 2012. The plaintiff
has had notice of the scheduled application since February 6 or 7,
2013. She was later offered a limited adjournment of the application but
declined to accept the offer. Instead, she wants the matter adjourned to near
year-end, seven or eight months away. In considering this ground, it is
necessary to consider the history of this proceeding.

[9]            
The action was commenced April 21, 2010, three years ago. It concerns
medical care the plaintiff received between 2006 and 2009. Pursuant to a
demand, the plaintiff produced particulars on July 6, 2011, while represented
by counsel. Apart from the production of those particulars, the plaintiff did
not take any step in the action until after receiving notice on February 6 or
7, 2013 that a summary judgment application was scheduled for April 24 and 25,
2013.

[10]        
Immediately following notice of the summary judgment application, the
plaintiff’s solicitors, the Pyper Law Group, filed a notice of withdrawal. The
plaintiff then filed a notice of intention to act in person. The plaintiff
received various correspondence from counsel for the defendants advising of the
need to retain experts. Earlier this month, the plaintiff unilaterally issued a
notice of trial.

[11]        
The plaintiff has had three years since commencing this proceeding to
marshal expert evidence. For most of that period she had legal representation. She
eschewed that representation immediately following receiving notice of this
application. With the exception of the new evidence, which I will refer to
later, instead of hiring experts, she has appended various internet materials
and correspondence she has had with persons with some medical knowledge. This
includes material from treating physicians in the United States. This material
does not qualify as expert evidence under the Rules of Court.

[12]        
I appreciate that it may sometimes be reasonable to adjourn  a summary
judgment application to allow a party to marshal their evidence. In this case,
however, the burden has always been on the plaintiff to obtain evidence
to prove medical negligence. Based on the authorities, in medical negligence
cases that will almost always require opinions from qualified experts to
establish a standard of care and breach of that standard. In my view, the plaintiff
both has been and should have been aware of this for some years now. This is
not a case where the plaintiff has short notice of the essential elements of
the case to be made out. Nor one where legal advice was not available. I find  no
merit to the ground that there should be an adjournment because of short
notice.

[13]        
 The plaintiff raised on April 22, 2013, two days before this
application, a request to cross-examine the defendants’ experts. The plaintiff
has had notice of this application since early February 2013 when the hearing
date was secured. Most of the defendants’ expert reports were served February
1, 2013. Given the lateness of this request, I agree with the defendants that
the request now is tactical or strategic, designed to thwart this proceeding.

[14]        
Moreover, the plaintiff has not filed any expert reports herself, which
would provide a basis for informed cross-examination, and has failed to show
that such cross-examination could benefit her case: see Mikhail v. Northern
Health Authority, 2010 BCSC 1817 at paras. 70, 81, and 85.

[15]        
The plaintiff says that she wants to cross-examine some of the
defendants or their representatives, although no appointment has been taken out.
The plaintiff has had three years to set examinations for discovery but has not
done so. Once again, this argument seems to be strategic.

[16]        
The plaintiff raises various health issues for the dilatory pace at
which the litigation has commenced. It is apparent that she has had some health
issues, and been involved in other litigation. There is no independent medical
evidence before the court, however, that substantiates that, for health
reasons, the plaintiff was incapable of moving this litigation forward during
those years. There is no medical evidence before me that she is or has been
incapable of responding to this proceeding. Indeed, rather than seek legal
representation, she has determined to proceed self-represented.

[17]        
The plaintiff asserts that there are contrary medical opinions from
other qualified persons. As part of her submission, however, she referred the
court to correspondence in which she sought to obtain, but was refused, medical
opinions. That correspondence, which I marked as Ex. B, includes draft letters
that physicians were asked to review “for discussion purposes”, but not
submitted. I am not convinced, on the evidence, that she would be able to
obtain such opinions in the form of admissible medical reports. It is apparent
that she has sought to obtain such opinions, even from the physician who
‘treated’ her, but without success.

[18]        
In the result, I denied the adjournment.

III.       Is the Matter Appropriate for a Summary
Judgment Application

[19]        
As noted by Madam Justice Newbury, in Everest Canadian Properties
Ltd. v. Mallmann, 2008 BCCA 275, where a summary judgment application is
set down, the parties are obliged to take every reasonable step to put
themselves in the best possible position. A party cannot, by failing to take
such steps, frustrate the benefits of the summary trial process: para. 34.

[20]        
The plaintiff argued that the matter was too complex with conflicting
opinions that could not or should not be resolved by a summary judgment
application. On a summary judgment application, a court may grant judgment in
favour of any party, either on an issue, or generally, unless the court is
unable, on the whole of the evidence before the court on the application, to
find the facts necessary to decide the issues of fact or law, or the court is
of the opinion that it would be unjust to decide the issues on the application.

[21]        
In this case, there are remarkably few conflicts in the evidence. Much
of the evidence before the court is based on hospital and other admissible
business records. What the plaintiff suggests are conflicts, are statements,
isolated from their context, that are most often heavily qualified.

[22]        
In any event, McEachern C.J.B.C., in Inspiration Mgmt. Ltd. v.
McDermid St. Lawrence Ltd. (1989), 36 B.C.L.R. (2d) 202 (C.A.), addressed
the circumstances in which a court should decide a case, notwithstanding
conflicting evidence. The court considered the application of the rule in
circumstances where both parties do not agree to a summary trial at page 214:

 … The procedure prescribed by R. 18A may
not furnish perfect justice in every case, but that elusive and unattainable
goal cannot always be assured even after a conventional trial and I believe the
safeguards furnished by the rule and the common sense of the chambers judge are
sufficient for the attainment of justice in any case likely to be found
suitable for this procedure. Chambers judges should be careful but not timid in
using R. 18A for the purpose for which it was intended.

 In deciding whether it will be unjust to give
judgment the chambers judge is entitled to consider, inter alia, the amount
involved, the complexity of the matter, its urgency, any prejudice likely to
arise by reason of delay, the cost of taking the case forward to a conventional
trial in relation to the amount involved, the course of the proceedings and any
other matters which arise for consideration on this important question.

 Because of dicta in
some cases, some counsel believe the Rule 18A procedure should only be
invoked when both parties agree to a summary trial. I do not agree, as it must
be expected in an adversarial process that parties will often disagree on the
appropriateness or otherwise of the summary trial procedure. There is no room
in the proper construction of R. 18A for a respondent’s veto.

[23]        
The presence of conflicting evidence is not a bar to proceeding
summarily. The question is not whether there are no conflicts in the evidence
— some conflicting evidence is virtually inevitable — the question is whether
the court is able to achieve a fair and just result proceeding summarily: MacMillan
v. Kaiser Equipment Ltd., 2004 BCCA 270 at para. 22.

[24]        
A court should be careful but courageous in assisting
the parties to resolve an action without a conventional trial if it can be done
without injustice. As the Court of Appeal has said, where possible “…it is
always to be hoped that judges will give judgment…”:  Mariotto v.
Waterman, 32 B.C.L.R. (3d) 125 (C.A.). In my view, those observations
adumbrate the court’s duty, especially in times where access to justice is an
accepted value, and it is incumbent on the court under Rule 1-3(1) to “secure
the just, speedy and inexpensive determination of every proceeding on the
merits”.

[25]        
The plaintiff cites the decision of Madam Justice Ker
in Fraser v. Abma, 2012 BCSC 1429. A summary trial should consider
the totality of evidence and if, as in the case before Ker J., there are
fundamental conflicts in the evidence which could only be resolved by
preferring one party’s evidence over another, the summary trial procedure
should not be used. In that case, both parties brought summary judgment applications
in respect of a commercial tenancy dispute. One party alleged a month to month
tenancy; the other argued there was a five year oral lease agreement. In short,
there was a “head on” conflict going directly to the foundation of the case. The
case at bar is far different.

[26]        
In my opinion, bearing in mind the proportionality required by the Rules
of Court, the amount involved, the course of proceedings, the complexity of the
matter, the cost of bringing the matter to trial conventionally, and the quality
of the evidence here, there would be little gained by deferring the matter for
a conventional trial, as the authorities say, in the hope that “something might
turn up” at a three week trial in October 2014.

[27]        
In my opinion, a fair and just result may be had in this case by
proceeding summarily.

IV.      The Summary Judgment Applications

[28]        
The defendants seek summary judgment dismissing the plaintiff’s claims. As
I have said, the plaintiff alleges that the defendant physicians were negligent
in failing to make a diagnosis. There were other failures, she asserts, by
hospital staff that contributed to the non-diagnosis. That involved the taking
of blood for testing and her being allegedly rendered unconscious.

[29]        
On the second day of hearing of the application, the plaintiff sought to
introduce in evidence two medical opinions obtained earlier that morning in
email correspondence as part of her case. Those medical opinions are in a
bundle of documents which were marked as Ex. A. It is not clear when those
medical opinions were commissioned. Nor is it indicated specifically what
information was before the persons rendering the opinions, although there are
some general descriptions. Neither opinion is properly admissible in this
application, nor would I admit them. That said, were they admitted, it would
not affect the outcome of this application.

A.       Standard of Care

[30]        
In medical negligence cases the court must judge a physician, and, for
that matter, other health professionals, based on the standard of an ordinary
average specialist in the same field under similar circumstances. That standard
was enunciated in Ter Neuzen v. Korn, [1995] 3 S.C.R. 674 at
paras. 33-34, and applied by our Court of Appeal in Chang v. Vancouver
Coastal Health Authority, 2007 BCCA 569, at para 22-25. Except, perhaps, in
the most obvious of cases, it is not a standard that can be determined a
priori or in an evidentiary vacuum by a court or tribunal.

[31]        
It is therefore incumbent on the plaintiff to produce expert evidence of
a standard of care that should be imposed on the defendants:  see Mikhail at
para 108, and Lurtz v. Duchesne, [2003] O.J. No. 1540 at para.345,
[2003] O.T.C. 319, a decision relied on by the plaintiff.

[32]        
In this case, that has not been done:  the plaintiff has not introduced
evidence of a standard of care that her treating physicians, or hospital staff,
failed to meet. What the plaintiff has done is refer the court to medical
records, hospital records, lab test results, journal articles, textbooks, some
medical letters and give the court her own opinion, as an autodidact, that her
care was wanting in this case.

[33]        
I note that some of the journal articles and textbook extracts relied on
by the plaintiff are from publications that post‑date her treatment by
these defendants. There is no evidence that the articles or book extracts are
accepted sources for issues they treat either today, or at the time the
plaintiff was under the care of the physician defendants. Some of the medical
letters she produces, while hearsay, and not properly admissible on an
application of this sort, are heavily qualified and selectively read.

[34]        
In this case there is no opinion evidence at all, other than that of the
plaintiff given in argument, that the defendant physicians breached the
requisite standard of care in diagnosing or treating the plaintiff. Although I
have said that the plaintiff is an autodidact, I must treat her submissions in
court the way I would treat the submissions of counsel. That is, as argument. It
is argument from an unqualified though intelligent self-taught person who is an
interested party. Regardless, argument is not evidence.

[35]        
On the other hand, the defendant physicians each swore lengthy
affidavits, describing their qualifications and experience, what they did, and
appending all of the germane hospital and medical records. Independent medical
experts then reviewed what they had done, and opined that each physician met
the standard of care expected of a reasonable specialist in the circumstances
of the case. Those opinions are not based on common sense, but based on the
qualifications of the respective experts with long years of experience in their
respective specialties.

[36]        
For example, Dr. Stuart Ross, an endocrinologist of more than 35 years
experience, opined that Dr. Kendler, Dr. Ur, and Dr. Kreisman met the standard
of care expected of a reasonable endocrinologist in their treatment of the
plaintiff. Dr. Kendler, Dr. Ur and Dr. Kreisman all swore affidavits
describing their treatment and/ or involvement. Dr. William Siu, an expert neuroradiologist
opined that Dr. Chew met the standard of care of a reasonable
neuroradiologist in the circumstances of this case. Dr. Chew swore an affidavit
describing his limited involvement. There is no contrary admissible opinion
evidence.

[37]        
The plaintiff has not shown that anything the defendants did, or failed
to do, breached the standard of care of a reasonable specialist in the
situation at bar. That finding applies equally to the hospital staff in their
activities of March 18, 2008. With respect to the hospital staff, while it is
apparent that they encountered difficulties in taking blood for testing on the
date in question, it is not apparent that having encountered those difficulties
and doing what they did in some way breached a standard of care.

B.       Causation

[38]        
There is a second problem with the plaintiff’s case. If the plaintiff
had established a standard of care, the plaintiff must not only show that there
was a breach of the standard, but also that this breach caused injury: 
that is, the plaintiff must show that but for the breach of the standard of
care, the injury would not have occurred.

[39]        
Establishing causation is an essential requirement in negligence law. It
is not enough for the plaintiff to prove that the defendant was negligent; the
plaintiff must also show that the defendant’s negligence caused the injury. Chief
Justice McLachlin said in Clements v. Clements, 2012 SCC 32 at para. 7, [2012]
2 S.C.R. 181:

[7] Recovery in negligence
presupposes a relationship between the plaintiff and defendant based on the
existence of a duty of care — a defendant who is at fault and a plaintiff who
has been injured by that fault. If the defendant breaches this duty and thereby
causes injury to the plaintiff, the law “corrects” the deficiency in the
relationship by requiring the defendant to compensate the plaintiff for the
injury suffered. This basis for recovery, sometimes referred to as
“corrective justice”, assigns liability when the plaintiff and defendant are
linked in a correlative relationship of doer and sufferer of the same harm:
E. J. Weinrib, The Idea of Private Law (1995), at p. 156.

[Emphasis added]

[40]        
The test for causation is the “but for” test: the plaintiff must show on
a balance of probabilities that “but for” the negligence of the defendant, the
injury would not have occurred. If the plaintiff does not establish that the
defendant’s breach of the standard of care brought about the injury, the action
must fail:  see Zeledon v. Kelowna General Hospital, [1996] B.C.J. 2868
at para, 4; Clements  at para. 8.

[41]        
I accept that establishing causation does not always require expert
evidence. However, in Sam v. Wilson, 2007 BCCA 622, 78 B.C.L.R. (4th)
199, Smith J.A. applied an earlier decision of the Court of Appeal in Moore
v. Castlegar & District Hospital (1998), 49 B.C.L.R. (3d) 100, 103
B.C.A.C. 187 (C.A.). In Moore at para. 11, Hollinrake J.A.,
speaking for the court, said:

With respect, I think in a case
like this where there is affirmative medical evidence leading to a medical
conclusion it is not open to the court to apply “the common sense reasoning
urged in Snell v. Farrell.” …

[42]        
In Page v. British Columbia (Workers’ Compensation Appeal Tribunal),
2009 BCSC 493, Mr. Justice Hinkson, as he then was, at para. 62 noted that
while the WCAT is presumed to be an expert tribunal in relation to all matters
over which it has exclusive jurisdiction “it is not presumed to have medical
expertise”. Thus, where faced with an uncontradicted medical diagnosis, Hinkson
J. held that the WCAT is not equipped to reject that diagnosis without an
appropriate opinion to the contrary.

[43]        
The essence of the plaintiff’s case here is that she had a pituitary
tumour that was not diagnosed by the defendant physicians, and that failure was
contributed to by the actions of hospital staff. However, the admissible
medical evidence of the experts before the court is that there was no pituitary
tumour at all.

[44]        
Dr. William Siu reviewed the various MRI studies dated March 4, 2008,
October 1, 2008, February 15, 2010, January 19, 2012, and the surgical
pathology report dated February 18, 2010. He concluded that “…there was no
imaging or pathological evidence that a microadenoma or any other tumour
existed in Ms. Tripp’s pituitary gland”.

[45]        
Dr. Ian Mackenzie, a neuropathologist, reviewed the February 18, 2010
pathology report and confirmed that the report describes the presence of normal
pituitary tissue, benign sinus tissue and bone, but no tumour.

[46]        
Dr. Winston Gittens, a neurosurgeon with more than 35 years experience,
reviewed the relevant clinical records and radiology imaging, and concluded
that the plaintiff had no pituitary tumour or Cushing’s disease, and was not a
surgical candidate. Although the plaintiff underwent a transphenoidal resection
of a portion of her pituitary gland in the United States, there were no
indications for this surgery “…to remove a tumour when no tumour was
identified pre-operatively or post-operatively” (my emphasis).

[47]        
The plaintiff, as I noted, filed email correspondence containing the opinions
of two physicians. Those opinions do not comply with the Rules of Court
regarding the admission of expert evidence. They are tendered woefully late in
this proceeding and are not admissible. That said, in my view, they do not
assist the plaintiff.

[48]        
The email of Kalman Kovacs, MD, PhD, (the “Kovacs Email”) describes an
investigation. Although it says that an “MRI demonstrated a 5mm lesion in the
left side of the pituitary” it does not say which MRI this was. The MRI done
immediately prior to her surgery demonstrated no such finding according to the
admissible expert opinion.

[49]        
After transphenoidal surgery, the Kovacs Email states “Pathologic investigation
could not find the tumour” and further “Investigating the slides in great
detail, no tumour could be identified” (my emphasis). The Kovacs Email then
goes on to state that, in certain scenarios (e.g., not submitting the tumour to
a fixative) small microadenomas may not be found through such testing. Although
apparently “not rare” the author “cannot exclude with certainty the existence
of small pituitary tumor” and recommends further testing.

[50]        
In my opinion, this evidence is simply incapable of proving the
existence of a pituitary tumour. It shows, if accepted, that three years after
the surgery, the physician is still uncertain whether there was a pituitary
tumour following invasive surgery at the site where it was purported to be.

[51]        
The second email tendered mid-way through this proceeding is from a
person who identifies himself as a professor of neurosurgery, Ian E. McCutcheon.
The McCutcheon Email references a previous opinion and investigation done by
the author for the plaintiff. The McCutcheon Email suggests the surgery the
plaintiff had as necessary. It also notes that the “official pathology reading
did not disclose tumor per the report”. In that it agrees with the defendants’
experts.

[52]        
The McCutcheon Email then says that it was still possible for a tumour
to exist given certain failures by the pathologist or surgeon. There is no
evidence here at all that there were such failures (failure to examine the
whole specimen, or failure of the surgeon to actually remove the tumour). On
the former point, failure to examine the whole specimen, the Kovacs Email says
that 18 slides were examined “in detail” without revealing a tumour. The
McCutcheon Email then draws a conclusion on an unproven assumption (that there
was a bulge on the left side of the pituitary gland) which was not seen by any
of the treating physicians here, nor is attested to on this application.

[53]        
In my opinion, neither the Kovacs Email nor the McCutcheon Email prove
the existence of a tumour as the plaintiff asserts. More importantly, neither
is capable of proving that the defendants were negligent by breaching an
appropriate standard of care.

[54]        
The plaintiff refers to extracts from documents, correspondence, and
records during the investigatory process. Although the plaintiff opines that
this material should have led to the diagnosis of a tumour and Cushing’s
disease, that is based on her own personal opinion. In my view, those matters
do not establish that the defendants failed to make a diagnosis they should
have made, nor are they an appropriate substitute for a considered expert
medical opinion by a qualified expert. What much of the physician records show,
when considered in proper context, is that the defendants were alive to the
possible diagnosis of a tumour and Cushing’s disease, tested for it, but found
the evidence did not support such diagnosis.

[55]        
The plaintiff relies on the decision in Lurtz , arguing that,
based on that case, negligence is shown. In my opinion the Lurtz decision
is of no assistance to the plaintiff here. In that case, the injured party
introduced evidence through their expert of the standard of care expected of a
medical practitioner faced with a patient exhibiting signs of acromegaly. The
court was able to conclude, based on that evidence, that the care received by
the plaintiff did not meet the appropriate standard, thereby causing injury to
the plaintiff.

[56]        
The Lurtz decision is of no assistance to me (1)  in determining
a standard of care is this case, or  (2) determining whether the care the
plaintiff received at the hands of these defendants, for the conditions she
presented to them, was care that was in breach of the appropriate standard of
care that would apply to them during their treatment in 2006-2009.

[57]        
The plaintiff’s claim against the hospital authority is that their
employees’ treatment of the plaintiff at the hospital during testing was
somehow negligent. The best admissible evidence of that treatment is in the
hospital records. The plaintiff asserts she was rendered unconscious but the
records do not support that. There is no evidence that the nurses’ conduct or
reporting of the tests at St. Paul’s Hospital was deficient in any way. In any
event, the plaintiff has failed to establish a standard of care, that the
defendant hospital authorities breached such a standard, or that any alleged
breach then caused her subsequent injury.

V.       Conclusion

[58]        
The application for summary judgment dismissing the plaintiff’s claim
against all of the defendants is allowed.

[59]        
Unless there is something of which I am not aware, costs follow the
event, at scale B.

[SUBMISSIONS ON COSTS]

[60]        
An award of double costs is a punitive measure against a litigant for
that party’s failure, in all of the circumstances, to have accepted an offer to
settle that should have been accepted. The circumstances in which double costs
should be awarded were extensively reviewed in Hartshorne v. Hartshorne,
2011 BCCA 29.

[61]        
The decisions cited by counsel for the defendants appear to antidate the
Hartshorne decision. The decision in MacKinley v. MacKinley Estate
involved a claim by well-to-do sons to vary a will granting their stepmother of
30 years all of their father’s modest estate.

[62]        
I accept that litigants should be aware that costs Rules are in place “to
encourage the early settlement of disputes by rewarding the party who makes a
reasonable settlement offer and penalizing the party who declines to accept
such an offer” (A.E. v. D.W.J., 2009 BCSC 505, 91 B.C.L.R. (4th) 372 at
para. 61, citing MacKenzie v. Brooks, 1999 BCCA 623, Skidmore v.
Blackmore (1995), 2 B.C.L.R. (3d) 201 (C.A.), and Radke v. Parry,
2008 BCSC 1397).

[63]        
In that regard, Mr. Justice Frankel’s comments on the purposes of the
double cost Rules in Giles v. Westminster Savings and Credit Union, 2010
BCCA 282 are apposite:

[74]      …In addition to indemnifying a successful
litigant, those purposes have been described as follows by this Court:

•     “[D]eterring frivolous
actions or defences”: Houweling Nurseries Ltd. v. Fisons Western Corp.
(1988), 37 B.C.L.R. (2d) 2 at 25 (C.A.), leave ref’d, [1988] 1 S.C.R. ix;

•     “[T]o encourage conduct that
reduces the duration and expense of litigation and to discourage conduct that
has the opposite effect”: Skidmore v. Blackmore (1995), 2 B.C.L.R. (3d)
201 at para. 28 (C.A.);

•     “[E]ncouraging litigants to
settle whenever possible, thus freeing up judicial resources for other cases: Bedwell
v. McGill, 2008 BCCA 526, 86 B.C.L.R. (4th) 343 at para. 33;

•     “[T]o
have a winnowing function in the litigation process” by “requir[ing] litigants
to make a careful assessment of the strength or lack thereof of their cases at
the commencement and throughout the course of the litigation”, and by
“discourag[ing] the continuance of doubtful cases or defences”: Catalyst
Paper Corporation v. Companhia de Navegação Norsul, 2009 BCCA 16, 88
B.C.L.R. (4th) 17 at para. 16.

[64]        
Rule 9-1(6) of the Supreme Court Civil Rules, which remains the
same as its predecessor, lists the following factors to be considered in making
an award for double costs:

(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 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.

[65]        
The first factor – whether the offer to settle was one that ought
reasonably to have been accepted – is not determined by reference to the award
that was ultimately made. Rather, in considering that factor, the court must
determine whether, at the time that the offer was open for acceptance, it would
have been reasonable for it to have been accepted: Bailey v. Jang, 2008
BCSC 1372, 90 B.C.L.R. (4th) 125 at para. 24; A.E. v. D.W.J. at para.
55.

[66]        
As was said in A.E. v. D.W.J., “The reasonableness of the
plaintiff’s decision not to accept the offer to settle must be assessed without
reference to the court’s decision” (para. 55). Instead, the reasonableness is
to be assessed by considering such factors as the timing of the offer, whether
it had some relationship to the claim (as opposed to simply being a “nuisance
offer”), whether it could be easily evaluated, and whether some rationale for the
offer was provided.

[67]        
The defendants’ offer to settle in this case was made at or near the
time the expert reports were first delivered to the plaintiff. That was only a
few months ago, not long before this summary judgment application. Shortly
thereafter the plaintiff elected to proceed on her own, unrepresented.

[68]        
The offer to settle can only be described as a nuisance offer.

[69]        
The physicians and hospitals are formidable adversaries in proceedings
such as these. Although the plaintiff has had plenty of time to consider her
position in the litigation, there is an imbalance between the resources she is
able to bring to bear on the defendants and their resources. The hospitals are
institutions. The medical profession is not known for impecuniosity.

[70]        
I accept that the plaintiff was sincere but wrong in advancing the
claim.

[71]        
The application for double costs is dismissed. Costs follow the event at
scale B.

“The
Honourable Mr. Justice Savage”