IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130313

Docket: 09-4634

Registry:
Victoria

Between:

Connie Karin
Francis Nicoletti

Plaintiff

And:

Andrew Thomas
Curry

Defendant

Before:
The Honourable Mr. Justice G.R.J. Gaul

Oral Reasons for Judgment

[1]            
THE COURT: On 29 October 2007, the motor vehicle being
driven by the plaintiff, Ms. Nicoletti, collided with the motor vehicle
being driven by the defendant, Mr. Curry.

[2]            
On 15 October 2009, Ms. Nicoletti launched a lawsuit against
Mr. Curry, claiming that he was at fault for the accident.
Ms. Nicoletti’s suit came on for trial before me on 15 October 2012.
By agreement of the parties, the only issue at that time for determination was
the question of liability. The issue of damages was left for another day.

[3]            
On 26 October 2012, I dismissed Ms. Nicoletti’s action because
I found she was responsible for the motor vehicle accident in question. I had
concerns about the strength and accuracy of Ms. Nicoletti’s evidence and
in particular I found her reliability as a witness was seriously weakened by
the contradictions that existed between her testimony at trial, her prior
written statement to an adjuster from the Insurance Corporation of British
Columbia (“ICBC”), and the answers she provided when she was examined for
discovery. As I noted in my reasons for judgment, Ms. Nicoletti indicated in
her statement to ICBC, that immediately after the crash a B.C. Transit bus
proceeding southbound on Gordon Head Road approached the accident scene. At her
examination for discovery, Ms. Nicoletti had been certain that the bus was
at the bus stop when the accident occurred, and I will repeat a portion of her
questions and answers:

Q         Ma’am, is it not true that in fact the bus
showed up at the accident site after the accident occurred?

A          No.

Q         You’re certain of that?

A          Yes.

[4]            
Ms. Nicoletti confirmed in her evidence at trial that she had
assisted with the creation of a diagram of the intersection where the accident
occurred. This diagram purportedly depicted Ms. Nicoletti’s version of
events and it included a transit bus being parked at the bus stop at the time
of the accident. Ms. Nicoletti explained the diagram was based upon the
information she had at the time and her belief that a bus was at that location
when the accident happened.

[5]            
The driver of the B.C. Transit bus, Mr. Stark, provided a video
deposition approximately two weeks prior to the trial date. In that deposition,
he indicated that he did not see the accident and arrived at the scene after it
had occurred. Clearly his evidence was not corroborative of
Ms. Nicoletti’s assertion that the bus was stationed at the bus stop when
the accident occurred. This evidentiary development may well explain why in her
evidence at trial Ms. Nicoletti changed her version of events and testified
that when her car came to a rest after the collision, she did not see a bus at
the bus stop.

[6]            
I found all of the witnesses who testified at trial did so in a genuine
manner. However, on the key facts about the accident and how it occurred, I
found myself doubting the reliability of Ms. Nicoletti’s evidence and
unable to accept her version of events. That is, I was not persuaded that the
accident occurred as described by Ms. Nicoletti. In my view, counsel for
Mr. Curry was correct in asserting that Ms. Nicoletti had quite
likely recreated the events and had done so in a way to fit her theory that
Mr. Curry had changed lanes in the intersection to get around a bus that
was stopped in the southbound lane of Gordon Head Road. The following excerpt
from Ms. Nicoletti’s examination for discovery illustrates the point:

Q         Is there anything in your mind that explains
why this blue car changed lanes?

A          Yes.

Q         What is that?

A          A bus stopped at
the bus stop in front of him.

[7]            
On the evidence before me at trial, I was satisfied on a balance of
probabilities the traffic control light was flashing green or at the very least
solid green when the collision occurred, and that it was Ms. Nicoletti who
had turned into the path of Mr. Curry’s vehicle.

[8]            
The question now before the court relates to the issue of costs and more
particularly the defendant’s application that I award him double costs based
upon an offer to settle that was delivered to the plaintiff prior to the trial.

Law

[9]            
The court has a broad discretion when it comes to the awarding of costs
and in particular the awarding of double costs: Gregory v. Insurance
Corporation of British Columbia, 2010 BCSC 1369.

[10]        
The starting point of any consideration of costs is Rule 14-1(9) of
the Rules of Court. The rule provides that in general, costs of a
proceeding must be awarded to the successful party. There can be no dispute
that in the present case, the defendant was the successful party.

[11]        
The next rule that is relevant to the issue before me is Rule 15‑1.
That rule applies to cases, like the present one, that has been litigated on a
fast track basis. Rule 15-1(15) provides that a successful party in a fast
track action is entitled to costs on the following scale:

(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 two days or less but more than one day, $9,500;

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

[12]        
Finally, Rule 9-1 governs the issue of offers to settle, and in
particular  Rule 9‑1(5)(b) provides:

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;

[13]        
As Willcock J. observed in Khunkhun v. Titus, 2011 BCSC 1677,
at para. 17:

The cost provisions of the rules
of court are intended to serve a compensatory purpose, to permit successful
litigants to cover their costs. They are also intended to further the
objectives summarized in Sartori v. Gates [citation omitted] as follows:

 (a)  deterring
frivolous actions or defences;

 (b)  encouraging conduct that
reduces the duration and expense of litigation and discouraging conduct that
has the opposite effect;

 (c)  encouraging litigants to
settle wherever possible, thus freeing up judicial resources for other cases;
and

 (d)  winnowing litigation, by
requiring 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 discouraging the continuance of doubtful cases or defences.

[14]        
I have also taken note of the comments in Bailey v. Jang, 2008
BCSC 1372 wherein Hinkson J., as he then was, observed that the rules
concerning double costs are designed to encourage settlement by, among other
things, penalizing the party who declines to accept an offer to settle.

Issues

[15]        
In my view, there are two issues to determine. The first is whether the
trial of this matter encompassed two or three days of trial time. That will
impact upon the scale of costs to be awarded. The second issue is whether the
defendant is entitled to double costs and if so, from what point in time.

  Length of the
Trial

[16]        
The first day of trial was on 15 October 2012. It lasted the entire
day. The evidentiary portion of the trial concluded before the morning break the
next day (16 October 2012).

[17]        
Prior to the morning adjournment on 16 October 2012, I advised
counsel that the court was short of judges that day and that I was needed to
preside over other matters in the afternoon. Although I indicated to counsel
that this case took priority and would continue in the afternoon with submissions
if counsel wished, I also enquired if they were prepared to have the
submissions adjourned to the next day. Both counsel expressed their
preparedness to proceed in the afternoon. However, respectful of the court’s
need to attend to other matters and wishing to take advantage of the extra time
to prepare their submissions, both counsel agreed to adjourn the matter to
10:00 a.m. the next morning (17 October 2012). In the result, day 2
of trial only consisted of a half-day.

[18]        
On 17 October 2012, the matter did not resume at 10:00 a.m. as
planned, because other matters were before the court at that time. That was not
the fault of either party or their respective counsel. Counsel for the
plaintiff commenced his submissions at approximately 10:45 a.m., and concluded
them shortly before the morning adjournment. Counsel for the defendant began
his submissions a few minutes before the morning adjournment. He resumed his
submissions at approximately 3:30 p.m. and not earlier, again because the court
had other matters on its afternoon list. Counsel for the defendant concluded
his submissions at approximately 4:30 p.m. Submissions, therefore, took
approximately two and three‑quarter hours.

[19]        
In total, over the course of three days, the trial of this matter took
approximately nine hours to complete. In my view, nine hours equates to
approximately two court days. Moreover, I am convinced that but for the court’s
enquiry of counsel whether they were prepared to go over to a third day to
accommodate the court’s needs, this matter would have concluded in two days. I
do not mean to attribute fault or direct any criticism to counsel for the fact
that this matter went to a third calendar day. That was done principally at the
request of the court.

[20]        
In my view, neither side should be held responsible or penalized because
this matter technically ran into a third day. Having considered the amount of
court time this case actually consumed, I am of the opinion that for the
purposes of Rule 15‑1(15), this matter took two days or less to
complete.

  Double Costs

[21]        
On 9 February 2010, an offer to settle this action for $1,000 and
reasonable disbursements was served on the plaintiff. Ms. Nicoletti did
not accept the offer and the matter went to trial. As I have already noted, I
found Ms. Nicoletti was at fault and responsible for the accident. Consequently
her action was dismissed in its entirety.

[22]        
The factors the court must consider when deciding whether to award double
costs are set out in Rule 9‑1(6):

(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.

  Was the offer to settle one that Ms. Nicoletti
ought to have accepted?

[23]        
In addressing this factor, I must do so without the benefit of
hindsight. That is, I must consider the question without taking into consideration
the end result at trial. Counsel for the defendant says Ms. Nicoletti’s claim
was weak from the outset, and therefore she should have accepted the offer to
settle upon its receipt or shortly thereafter. In making this submission, counsel
points to the fact that Ms. Nicoletti had Mr. Curry’s statement and
that of Ms. Groot, an independent witness whose evidence corroborated much
of the defendant’s version of events.

[24]        
Both parties recognize and accept that if the award of double costs is
made on this basis, that a 10 percent discount should be applied to reflect the
steps in the litigation that were taken before the offer was delivered.

[25]        
In the alternative, counsel for the defendant argues that
Ms. Nicoletti should have accepted the offer to settle shortly after the
completion of the examinations for discovery. At that point, Ms. Nicoletti
knew or ought to have known that Mr. Curry’s evidence was consistent with
what he had said in his statement to ICBC. Moreover, she must also have been
aware that her answers at her examination for discovery clashed with what she
had said in her statement to ICBC. Counsel for the defendant says a 15 percent
discount to the award of double costs would be appropriate to reflect the
litigation steps taken prior to this point in the case. Counsel for Ms. Nicoletti
submits that if this scenario is accepted, then the discount should be 25 percent.

[26]        
Finally, as a third alternative, counsel for the defendant argues that
Ms. Nicoletti should have accepted the offer to settle after the
deposition of her witness, Mr. Stark. He was the operator of the transit bus
that arrived at the scene shortly after the accident. Initially Ms. Nicoletti
had asserted that the bus was present prior to the accident and that it was the
reason why Mr. Curry had to change lanes. Mr. Stark confirmed on his
deposition that he arrived after the accident. In her statement to ICBC and her
answers on discovery, Ms. Nicoletti insisted that the bus was present.
After learning the bus was not present, Ms. Nicoletti had to change her story.
Instead of insisting that the stationary bus was the cause of Mr. Curry’s
lane change, Ms. Nicoletti asserted that Mr. Curry must have changed
lanes because, had the accident occurred as he said it had, then his vehicle would
have been blocking the path of Mr. Stark’s bus that was behind him. According
to Mr. Stark, there was no car in his path when his bus traversed the
intersection. Mr. Stark could only recall Ms. Nicoletti’s car being
present in the intersection when he arrived and he could not recall seeing a second
car in the vicinity. He also explained that to the best of his recollection his
lane of travel was unimpeded by anything; that is, he could not remember a car being
in his way. In my view Mr. Curry’s car was present in the south bound curb
land when Mr. Stark’s bus approached the intersection and that Mr. Stark
was mistaken or did not notice it when he passed it.

[27]        
Counsel for the defendant submits that a 25 percent deduction would be
fair if the court finds the offer to settle should have been accepted at this
point. Counsel for the Ms. Nicoletti says the discount should be 40
percent.

[28]        
In my opinion, it should have been clear to Ms. Nicoletti after the
deposition of Mr. Stark, that his evidence not only failed to corroborate
her version of events but contradicted an important facet of it.

[29]        
Counsel for Ms. Nicoletti argues it was not unreasonable for Ms. Nicoletti
to have rejected the offer to settle at the outset. She recognized that her
claim had an element of risk to it; however, she believed it was not frivolous.
She had incurred medical expenses allegedly attributable to the accident and
sought a legitimate redress through the court. Counsel argues that
Ms. Nicoletti could not have foreseen the court’s decisions on evidentiary
matters, and more particularly could not have foreseen that her evidence would
have been rejected.

[30]        
I have kept in mind the factors articulated by Willcock J. in Khunkhun,
and while I am prepared to give Ms. Nicoletti the benefit of the doubt and
find it was not unreasonable for her to reject the offer at the outset, I find
the situation did change over time, and that at the point in time where she
became aware of Mr. Stark’s evidence, she should have accepted the offer.

  The Relationship
Between the Award and the Offer

[31]        
The defendant’s offer was a very modest one of only $1,000. However, it
also includes disbursements, and as the jurisprudence points out that is not a
factor to be disregarded. In the end, the plaintiff has received nothing.
Counsel for Ms. Nicoletti, has quite properly conceded that this fact
weighs in favour of the defendant.

  Relative
Financial Circumstances of the Parties

[32]        
The defendant is represented by his insurer and it would be artificial
of me to ignore this fact. That means I am not to view the defendant’s
situation based solely on his very modest financial means.

[33]        
Ms. Nicoletti is a professional engineer who earns an income of
approximately $90,000. She has a young child and, although the evidence is
scant, it appears that she is the child’s primary custodial parent. I know
nothing about any child support Ms. Nicoletti receives from the child’s
natural father. I am told that Ms. Nicoletti is involved in a relationship
and that her partner earns a not insignificant income. From all of this, I
conclude that Ms. Nicoletti has the financial means to pay the costs
associated with this case and, more importantly, that an award of double costs
against her would not place her in financial peril or do an injustice to her.

  Other
Considerations

[34]        
Under this heading I have considered the fact that Ms. Nicoletti is
a professional engineer with experience in motor vehicle and traffic issues. I
agree with counsel for the defendant’s submission that Ms. Nicoletti’s
professional background provided her with a knowledge and appreciation of the
duties of drivers and the rules of the road. In my view, this put her in a
particularly strong position of being able to assess the risks of her case.

[35]        
Counsel for Ms. Nicoletti argues that she pursued the most
economical means of prosecuting what she believed was a meritorious claim. She
chose to litigate the issue of liability first, instead of having all of her
claim tried at once. She also chose to fast track litigation. Counsel says that
Ms. Nicoletti’s claim was fraught with risk, but it was not a frivolous
claim. I accept that at the outset Ms. Nicoletti’s claim may not have been
frivolous. However, as time progressed and the various steps in this litigation
were completed, the strength of Ms. Nicoletti’s case diminished
significantly. In my view, it should have been clear to Ms. Nicoletti that
by the time Mr. Stark’s evidence was in her possession, that not only was
her claim fraught with risk, but that the evidentiary foundation of the claim
was no longer as she thought it was. In my view, at that point it was
unreasonable to continue.

[36]        
In my opinion, Ms. Nicoletti should have accepted the offer to
settle shortly after the deposition of Mr. Stark.

[37]        
Consequently, I will grant the application and award the defendant
double costs. In exercising my discretion, I will deduct 25 percent from the
amount awarded to reflect the timing when the offer should have been accepted.

Order

[38]        
Subject to any mathematical corrections that counsel wish to bring to my
attention, the order resulting from these reasons will consist of the following:

a)    The defendant’s
application for double costs is granted;

b)    The award of
double costs will be for a two‑day trial, and therefore those costs are
$19,000;

c)     There will
be a 25 percent deduction; given the finding of when the offer should have been
accepted, that equates to $4,750;

d)    The costs award
is therefore $14,250.

[39]        
Each party will bear their own costs of this application.

[40]        
THE COURT:  Anything further?

[41]        
MR. SMITH:  No, and just to be — other than that $14,250 is, to
clarify, My Lord, the pre‑tax amount and then pre‑disbursements,
so $14,250 plus the taxes on fees, plus the disbursements will be the order
that goes.

[42]        
THE COURT:  Yes, the ordinary.

[43]        
MR. SMITH:  Thank you, My Lord.

[44]        
THE COURT:  Mr. Selly?

[45]        
MR. SELLY:  My Lord, I’m content with the math. Just to bring some
certainty and finality to this matter, I’d ask that Your Lordship award a
specific amount of disbursements, that being the amount laid out in my friend’s
draft bill of costs that was attached to the materials, which I just now
realize —

[46]        
THE COURT:  Mr. Smith, any issue with that?

[47]        
MR. SMITH:  No issue at all, and I suspect my friend and I can
agree to that.

[48]        
THE COURT:  All right.

[49]        
MR. SMITH:  Although I don’t think either of us has that total
amount of disbursements before us today.

[50]        
THE COURT:  Well, then let me clarify for the purposes of the record and
for counsel. The application is granted. Double costs for two days come to
$19,000. A 25 percent deduction, given the time when I find the offer
should have been accepted, is $4,750, making an award of costs of $14,250. That
is exclusive of taxes and disbursements, and I will make the order that the
disbursements that are included in the — was that attached to the affidavit of
—

[51]        
MR. SMITH:  Ms. Geary, yes.

[52]        
THE COURT:  Ms. Geary.

[53]        
MR. SMITH:  It was.

[54]        
MR. SELLY:  Yes.

[55]        
THE COURT:  The disbursements that are an exhibit to the affidavit of
Ms. Geary that was filed on this hearing are the reasonable disbursements
that the defendant can claim.

[56]        
I take it you are consenting to that portion, Mr. Selly?

[57]        
MR. SELLY:  Yes, My Lord.

[58]        
THE COURT:  All right, and each party will bear their own costs of this
application.

[59]        
MR. SELLY:  Thank you, My Lord.

[60]        
THE COURT:  Anything further, Mr. Smith?

[61]        
MR. SMITH:  Nothing, thank you, My Lord.

[62]        
THE COURT:  Mr. Selly?

[63]        
MR. SELLY:  Thank you, My Lord.

“G. R. J. Gaul J.”