IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130710

Docket: M106147

Registry:
Vancouver

Between:

Rebecca Codling

Plaintiff

And

Victor Sosnowsky

Defendant

Before:
The Honourable Mr. Justice N. Smith

Reasons for Judgment on Costs

[1]            
In oral reasons for judgment on May 30, 2013, I awarded the plaintiff
damages totalling $70,764.71 for injuries she sustained in a motor vehicle
accident. The plaintiff had offered to settle the matter for $55,000 and now
seeks additional costs.

[2]            
The defendant says additional costs are not appropriate in this case,
but any costs awarded are subject to the fixed amounts applicable to fast track
actions under Rule 15-1. This action was neither filed nor conducted as a fast
track case, but the amount awarded is one that could have been sought through
that procedure.

[3]            
The defendant also says it is premature to deal with costs because he
has filed an appeal and even partial success could reduce the award to an
amount below the offer to settle. I do not accept that argument. The duty of
this court is to finalize its own judgment. If the Court of Appeal finds that
judgment to be in error, the costs consequences will change accordingly.

[4]            
This case was originally set for trial in October, 2012, but did not
proceed because no judge was available. The offer to settle was delivered on
May 21, 2013–six days before the rescheduled trial began.

[5]            
The possible effects of a formal offer to settle and the matters for the
court to consider in exercising its discretion are set out in the Supreme
Court Civil Rules, B.C. Reg. 168/2009, Rules 9-1 (5) and (6):

(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.

(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.

[6]            
The final judgment in this case was substantially greater than the offer
to settle. Although that is one factor to consider, that is not determinative
and does not go to the separate consideration of whether the offer ought
reasonably to have been accepted. In Hartshorne v. Hartshorne, 2011 BCCA
29, the Court of Appeal said:

[27] 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. 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. We do not
intend this to be a comprehensive list, nor do we suggest that each of these
factors will necessarily be relevant in a given case.

[7]            
On the basis of the evidence that the parties could reasonably have
anticipated being called at trial, I find that the plaintiff’s offer
represented a reasonable effort to assess her possible recovery. It was one the
defendant should have recognized as being within the range of possible awards
and ought reasonably to have been accepted, particularly when weighed against
the cost of going to trial. I recognize that liability was denied and the
plaintiff’s offer made no apparent discount for risk on that issue, but this
was a rear-end collision and the defendant had little prospect of success on
liability or contributory negligence.

[8]            
I agree with the defendant that any costs, including additional costs
flowing from the offer to settle, must be awarded on the basis of Rule 15-1. That
flows from Rule 14-1(f), which reads:

(1) If costs are payable to a party under these Supreme Court
Civil Rules or by order, those costs must be assessed as party and party costs
in accordance with Appendix B unless any of the following circumstances exist:

(f) subject to subrule (10) of this
rule,

(i) the only relief granted in the
action is one or more of money, real property, a builder’s lien and personal
property and the plaintiff recovers a judgment in which the total value of the
relief granted is $100,000 or less, exclusive of interest and costs, or

(ii) the trial of the action was
completed within 3 days or less,

in which event, Rule 15-1 (15) to
(17) applies to the action unless the court orders otherwise.

[9]            
Rules 15-1 (15) and (16) read

(15) Unless the court otherwise orders or the parties
consent, and subject to Rule 14-1 (10), the amount of costs, exclusive of
disbursements, to which a party to a fast track action is entitled is as
follows:

(a) if the time spent on the
hearing of the trial is one day or less, $8 000;

(b) if the time spent on the
hearing of the trial is 2 days or less but more than one day, $9 500;

(c) if the time spent on the
hearing of the trial is more than 2 days, $11 000.

(16) In exercising its discretion
under subrule (15), the court may consider an offer to settle as defined in
Rule 9-1.

[10]        
Rule 9-1(5) refers to awarding or denying costs “in respect of some or
all of the steps taken” after the offer to settle. That cannot be applied
directly when Rule 15-1 applies because that rule provides for a lump sum award
of costs. The only clearly identifiable step is the trial–costs are $8,000 for
a one day trial, $9,500 for a two day trial and $11,000 for trial lasting more
than two days. It is therefore assumed that $1,500 represents the costs of each
day of trial, including preparation: Duong v. Howarth, 2005 BCSC 128; Wattar
v. Lu, 2013 BCSC 1080

[11]        
I therefore find that the plaintiff is entitled to double costs for a
trial of two days or more, increasing the costs payable under Rule 15-1 (15)
from $11,000 to $14,000.

“N.
Smith, J.”