IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Charland v. Cloverdale Minor Baseball Association and |
| 2013 BCSC 2349 |
Date: 20131220
Docket: S136056
Registry:
New Westminster
Between:
Benoit Charland
Plaintiff
And:
Cloverdale Minor Baseball Association and
David Wheeler
Defendants
Before: The Honourable Madam Justice
Watchuk
Reasons for Judgment
on Costs
Counsel for | J.M. Green | |
No one |
| |
No one |
| |
Place and | New Westminster, B.C. April 15, 2013 | |
Place and | New Westminster, B.C. December 20, 2013 | |
I.
Introduction
[1]
This claim for double costs is brought by the Defendant, David Wheeler,
following a judgment which dismissed the claim of the Plaintiff, Benoit
Charland. Mr. Wheeler submits that it would have been reasonable for Mr. Charland
to accept one of three offers to settle made by him prior to the three-day
trial.
[2]
In the Reasons for Judgment (the Reasons) reported at 2013 BCSC 488,
I stated as follows with regard to costs:
[106] Unless there are matters
of which I am unaware Mr. Wheeler is entitled to the costs of the action.
If either party seeks a different cost determination they should file written
submissions within 21 days. Any responsive submissions should be filed
within 15 days thereafter.
[3]
No submissions on costs have been received from Mr. Charland despite
three enquiries from the court to his counsel. The court is now advised that
no response will be forthcoming and that counsel is anticipating being removed
from the record.
[4]
I assume for the purposes of these Reasons that Mr. Charland would
object to the granting of double costs to Mr. Wheeler.
II.
Issues
[5]
The sole issue for determination is whether Mr. Wheeler has
established that he is entitled to double costs pursuant to Rule 9-1(5) of
the Supreme Court Civil Rules, B.C. Reg. 168/2009 [Rules].
I.
Facts
A.
The Trial
[6]
A summary of the facts and issues is found in paras. 1 to 6 of the
Reasons. I quote:
[1] The individual parties are fathers whose sons are
involved in Pee Wee baseball in Cloverdale, British Columbia. This action
involves an altercation between the fathers at a Pee Wee baseball game at
Greenaway Park (the park) in Cloverdale on May 16, 2011.
[2] The claim against the Cloverdale Minor Baseball
Association was discontinued before the trial.
[3] On May 16th, one of Mr. Charlands
sons was playing in the baseball game, and Mr. Wheelers son, Cameron, was
scheduled to umpire. When Mr. Wheelers son was late arriving for the
game, Mr. Charland telephoned another of his sons to come and umpire.
[4] When Mr. Wheelers son arrived at the park, Mr. Charland
told him to go home as he had been replaced due to his tardiness. Cameron left
as he was told.
[5] Mr. Wheelers son went home upset from the
game. As he was worried about his son, Mr. Wheeler went to the baseball
field to talk to Mr. Charland.
[6] In the course of that
conversation between Mr. Charland and Mr. Wheeler at the park, an
altercation ensued. Mr. Charland says that Mr. Wheeler assaulted him
and caused injuries. Mr. Wheeler says that Mr. Charland assaulted
him and that he acted in self-defence. The police officer who attended the
scene concluded that the fight was consensual.
[7]
After considering the evidence of the parties and the witnesses to the
altercation, I concluded as follows at paras. 101 and 105:
[101] I find that when Mr. Charland got up out of his
chair and moved quickly towards Mr. Wheeler who was then 8 to 10 feet away
on the grass Mr. Charland had an intention to fight. Mr. Wheeler
reacted by engaging in the fight after walking back toward an angry man. Mr. Charlands
action in standing up and moving toward Mr. Wheeler, as it created fear,
was an assault. Mr. Wheeler responded with a punch which was a battery.
I conclude that the proper characterisation of the altercation between the two
fathers is that it was consensual.
[102] In arriving at those conclusions, I
make also the following findings of fact and credibility:
1. I do not accept Mr. Charlands
evidence as to the location of his chair. Mr. Charlands chair was
immediately adjacent to the front of the bleachers on the asphalt. The place
where Mr. Charland fell down after the altercation was on the grass at the
rear of the bleachers 8 to 10 feet away. Mr. Charland testified that his
chair was some distance away from the bleachers with a shorter distance to the
grass. I accept the evidence of the other witnesses including Mr. Geppert
who described his use of the bleachers as a table for his food. I conclude
that Mr. Charland moved from his chair beside the bleachers to the grass
at the rear of the bleachers towards Mr. Wheeler when he stood up from his
chair after he said, Ill get you later or Ill do you later. His
intention in moving towards Mr. Wheeler at that time was to engage in a
fight.
2. Mr. Charland
did not have food in his hands when he stood up from the chair. Only the
witness Deborah Brozer testified as to that, and it is inconsistent with the
evidence of the other witnesses, including Mr. Charland.
3. Mr. Charland
was angry at Cameron Wheeler for being late and was angry at the time that
Camerons father, Mr. Wheeler, approached him. Mr. Charland never
had an intention to talk to Mr. Wheeler and sort out the matter between
the two fathers. I do not accept Mr. Charlands evidence that he was
calm.
4. Mr. Charland
was not calm when he spoke with Cameron or with Mr. Wheeler. The
witnesses, Mr. Geppert and Mr. Young, could not clearly observe Mr. Charlands
face during the heated interaction with Mr. Wheeler. Mr. Wheelers
face, however, was visible to the witnesses. Mr. Young heard very little
of the conversation. Mr. Geppert missed the beginning of the interaction
and conversation. Those witnesses had a limited opportunity to observe and saw
and heard only part of the sequence of events.
5. The
evidence of Mr. Charland at the trial is inconsistent with the statement
he made to Cst. Lee immediately after the event. That statement, that he
agreed to the physical confrontation with Mr. Wheeler by saying words to
the effect of Ill get you, is the most reliable evidence. Although Mr. Charland
testified that he told Cst. Lee the truth, he denied saying I will get
you. I prefer the evidence of Cst. Lee in this regard. Further, I do
not believe Mr. Charland that Ill do you later means I will meet with
you later. Mr. Charland agreed in cross-examination that his words Ill
do you later, which equate to Cst. Lees evidence of Mr. Charland
saying Ill get you later, were said by him at the time he got out of the
chair. Those words were an expression of Mr. Charlands intention to
fight. When Mr. Wheeler turned to walk toward Mr. Charland, he knew
that Mr. Charland was angry.
6. Mr. Charlands
evidence is internally and externally inconsistent with regard to the assaults
of Mr. Wheeler. In direct examination he testified that he had been hit
multiple times, while in cross examination, he agreed that there was one punch.
He testified in court to being kicked by Mr. Wheeler, but did not tell
Cst. Lee about a kick.
7. None
of the other witnesses testified that there was a kick. Mr. Geppert and Mr. Young
testified specifically that they did not see any kick. I cannot find on the
evidence that there was a kick by Mr. Wheeler.
8. The
independent witnesses differed on the number of punches. Mr. Geppert said
that there were a number of punches thrown by Mr. Wheeler, differing from Mr. Charlands
evidence in cross-examination that there was one punch. Ms. Brozer did
not see any punches.
9. I
accept Mr. Wheelers evidence that he punched Mr. Charland one time
and did not kick him. I generally found Mr. Wheeler to be a credible and
sincere witness.
[103] In making these findings I am mindful of the
submissions of counsel for Mr. Charland that there was a lack of
compliance with the rule in Browne v. Dunn. He cites this especially
with regard to the evidence of Cam Wheeler that he was upset, and with regard
to the evidence of Mr. Wheeler that he suffered a black eye. I am
satisfied that by submissions of counsel and by the consideration of the
totality of the evidence, all evidence has been taken into account in these
circumstances. No credibility findings have been adversely affected by the
lack of strict compliance with the rule.
[104] It is
also necessary to state that I find that the force used by Mr. Wheeler was
not excessive in the circumstances.
[105] As Mr. Wheeler has
proven that the fight was consensual, the defence to the allegation of assault
by Mr. Wheeler is established. Both parties would be disentitled to any
damages. Only Mr. Charland sought damages. The claim of Mr. Charland
is dismissed.
[8]
With regard to the nature of the assault and the injuries alleged, I
found at paras. 99 and 100:
[99] Mr. Wheeler had walked away 8 to 10 feet to
the grassy area. He walked back part of that distance to Mr. Charland. Mr. Charland
stood up from his chair and moved forward quickly towards Mr. Wheeler.
When Mr. Wheeler saw him coming, he had a real fear of being injured or,
as he put it, run over. Mr. Wheeler then hit Mr. Charland once in
the head. The moments of contact between the two fathers included some mutual
grabbing which Mr. Geppert described part of, Ms. Brozer referred to
as a kafuffle and Ms. Korrins described as grappling. In the course of
that interaction, Mr. Charland slipped and fell on the grass. Mr. Wheeler
then walked away after the intervention of some of the other witnesses and
observers.
[100] Mr. Wheeler did not
kick Mr. Charland. There is no independent evidence of a kick. If Mr. Charland
was injured in his kidney during the altercation at the park, I conclude that
the injury occurred from his fall on the grass. Similarly, Mr. Wheelers
injury to his eye which resulted in a black eye was a result of the mutual
grappling and physical interaction rather than a punch by Mr. Charland
directly to Mr. Wheeler.
[9]
In arriving at those conclusions I made the findings at para. 102
that: I did not accept Mr. Charlands evidence regarding the location of
his chair, or that he had food in his hands when he stood up, or that he was
calm when Mr. Wheeler initially approached him to talk; Mr. Charlands
evidence at trial was inconsistent with the statement he made to Cst. Lee
immediately after the event; Mr. Charlands evidence was internally and
externally inconsistent with regard to the assaults of Mr. Wheeler; and, I
generally found Mr. Wheeler to be a credible and sincere witness.
B.
The Offers to Settle
[10]
Prior to the Examination for Discovery of Mr. Charland, Mr. Wheeler
made two offers to settle to Mr. Charland:
(a) on March 13, 2012, Mr. Wheeler
offered Mr. Charland $3,000 to settle the claims; and
(b) on June 8, 2012, Mr. Wheeler
offered Mr. Charland $5,000 to settle the claims. This was just prior to
discoveries.
I note that only the second offer was in the form
required by Rule 9-1(1) of the Rules.
[11]
A third and final offer of $250 was made on August 2, 2012 based on
the recently completed Discovery of Mr. Charland. In the accompanying
letter, counsel for Mr. Wheeler stated that:
(a) the
Plaintiff’s story of being attacked by Mr. Wheeler was implausible, filled
with omissions, and contradicted by other witnesses as well as the police
report;
(b) the
Plaintiffs injuries were not serious; and
(c) it would be very difficult to
prove the nature and extent of the Plaintiffs injuries, particularly as the
Plaintiffs medical reports did not support his claims, and were at any rate not
backed by expert testimony.
[12]
None of the offers were accepted by the plaintiff. The three-day trial
was held on August 30 and 31 and September 5, 2012.
III.
The Law
[13]
The last offer made by Mr. Wheeler, $250, could be characterised as
a nominal offer. The law with regard to such offers is set out by Goepel J.,
as he then was, in the case of Ward v. Klaus, 2012 BCSC 99 [Ward],
as follows:
[27] Some controversy arose as to whether double costs
should be paid to a defendant who made a nominal offer to settle an action
which was subsequently dismissed. In Clark v. Sidhu, 2005 BCSC 914, 51
B.C.L.R. (4th) 119 (Clark), the defendant had made an offer to settle
a motor vehicle case in the sum of $1.00. After the action was dismissed, the
trial judge held at para. 23 that an offer must be reasonable to attract
the sanction of double costs.
[28] In Kurylo v. Rai, 2006 BCCA 176, 53 B.C.L.R.
(4th) 214 (Kurylo), Southin J.A. held that Clark was wrongly
decided and must be overruled. At paras. 7-8, she said:
[7] In my opinion, with great respect, the judgment in Clark
v. Sidhu is wrong and must be overruled. There is an underlying reason.
When a defendant assesses his position in litigation of any kind he may
consider that the plaintiff has no case and if the case goes to trial, will
fail. But the defendant may also be willing to make some minor offer which
would carry with it the costs in the hope that the action will go away and that
he will not, thereafter, incur large legal bills to establish his legal
position that the plaintiff has no case.
[8] The reasonableness of an offer under Rule 37 is no
business of the Court when it is a monetary offer. … But the reasonableness
of the offer when it is a monetary claim, whether made by the plaintiff or the
defendant, is not a matter for judicial consideration.
B. Rule 9-1
[29] Rule 37B came into
effect on July 1, 2008. It is now Rule 9-1. The relevant provisions
of the Rule are:
(4) The court may consider an offer to
settle when exercising the courts 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:
(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.
.
[36] There is now general
agreement that in determining whether the offer to settle should reasonably
have been accepted the court does not consider the final result. The
reasonableness of a decision not to accept an offer to settle must be assessed
not by reference to the award that was ultimately made, but rather the
circumstances existing when the offer was open to acceptance: Bailey v. Jang,
2008 BCSC 1372, 90 B.C.L.R. (4th) 125 at para. 24 (Bailey); and Hartshorne
at para. 27. It is important to note that this factor is considered from
the perspective of the person receiving the offer.
[14]
In MacKinlay v. MacKinlay Estate, 2008 BCSC 1570,
Savage J. considered the effect of Rule 37B when a nominal offer was
made. The issue was whether double costs should be awarded where the
successful defendant had made a nominal offer to settle. He held, at
para. 34:
[34] While a nominal offer
might be described as strategic, it was a strategy aimed at persuading the
Plaintiffs to discontinue the proceeding, an outcome that is favourable as
compared to the outcome the Plaintiffs obtained at trial. Such an offer is one
of the few tools in the arsenal of a defendant of relatively modest means which
might exert pressure on a plaintiff pursuing an unmeritorious claim.
[15]
Riley v. Riley, 2010 BCSC 822 also considered nominal offers.
The defendant had offered no monetary settlement, but only to waive its right
to seek costs should the plaintiff abandon its claim. The Court found that:
[13] In my view the Plaintiff should have reasonably
anticipated his claim would be dismissed at trial.
[21] I see no logical distinction between a nominal
offer and an offer such as that made by the defendant in this case. The
principle is the same. One party is provided with an offer to settle and if
not successful at trial in advancing its position relative to the offer it may
be held accountable for costs pursuing the matter to trial.
[22] …The judgment upheld
the position [the Defendant] outlined in the offer to settle. Had the
Plaintiff accepted it he would have saved not only his legal costs but also the
legal costs he must pay to the Defendant as the successful party.
[16]
One of the leading cases on the issue of costs, Hartshorne v.
Hartshorne, 2011 BCCA 29, at para. 25, includes as one of
the purposes for which costs rules exist:
[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: [citations omitted]
IV.
Discussion
[17]
Mr. Wheeler submits that the offers were offers which ought
reasonably to have been accepted. There is now general agreement on the law
that, in determining whether the offer to settle ought reasonably have been
accepted the court does not consider the final result
The reasonableness of a
decision not to accept an offer must be assessed
[by] the circumstances
existing when the offer was open to acceptance: [Ward at para. 36].
[18]
The first offer of $3000, although not a formal offer under the Rules,
was made on March 13, 2012. It canvassed the minor injuries set out in Mr. Charlands
records, and noted that there was not the required supporting letter to
substantiate the amount of an offer which had been made by Mr. Charland.
[19]
On June 8, 2012, a formal offer to settle in the amount of $5000
was served on counsel for Mr. Charland. It was open until five minutes
after the commencement of the trial.
[20]
Discoveries of Mr. Charland were held in late July 2012. On
August 2, 2012, counsel for Mr. Wheeler wrote to plaintiffs counsel
expressing reasons why Mr. Charlands case was problematic. Those
reasons, the credibility of Mr. Charland and the nature and extent of his
injuries, were later the subject of findings made at the trial which supported
the position of Mr. Wheeler.
[21]
At that time, previous offers were retracted and a nuisance offer of
$250 was formally made.
[22]
Mr. Wheeler submits that the fact that the final offer was reduced
significantly following discoveries should have no effect on the determination
of whether double costs are appropriate in this case. I agree.
[23]
It was incumbent on Mr. Charland to make a careful assessment of
the strength or lack thereof of [his] case at the commencement and throughout
the course of the litigation [Hartshorne at para. 25]. Mr. Charland
had knowledge, particularly after his Discovery, of the evidentiary problems in
his case. He chose to proceed to trial despite knowledge of those problems.
In light of that knowledge at the time the $5000 offer was made, and in light
of the heightened knowledge at the time the nominal offer of $250 was made, his
decision not to accept the offers was not reasonable.
[24]
As in Riley, Mr. Charland ought reasonably to have anticipated
that his claim would be dismissed at trial.
[25]
With regard to the other factors listed in Rule 9-1(6), the
relationship between the terms of settlement offered and the final judgment of
the court may be considered by the court. The second and final offers were
more favourable to Mr. Charland than the decision of the court since his
claim was dismissed with costs.
[26]
The court may also consider the relative financial circumstances of the
parties. Little is known regarding this factor. It appears from the evidence
that both parties have similar financial circumstances. Both have legal costs
arising from the litigation.
[27]
There are no other factors raised by Mr. Wheeler and, in the
absence of submissions from Mr. Charland, no other factors that the court
considers appropriate to take into account.
[28]
On consideration of the factors set out in Rule 9-1(6), I conclude
that Mr. Wheeler is entitled to double costs from the date of the first
formal offer, June 8, 2012.
The Honourable
Madam Justice Watchuk