IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140702

Docket: M135387

Registry:
Vancouver

Between:

Ishan Bideci

Plaintiff

And

Carl Neuhold,

South Coast BC
Transportation Authority and

The
Corporation of the District of West Vancouver

Defendants

Before:
The Honourable Mr. Justice Abrioux

Reasons for Judgment on Costs

Table of Contents

I: Introduction. 3

II: Offers to Settle. 3

III: Parties’ Positions. 5

IV: Discussion. 6

1. Was the Formal Offer revoked by
the subsequent Informal Offer?. 6

2. Was the Formal Offer ambiguous in
that no release was attached?. 11

3. Conclusion on the Formal Offer 13

V: Analysis Regarding Costs. 14

1. Applicable Principles. 14

2. Discussion. 15

I: Introduction

[1]            
This action was a fast track litigation proceeding related to an
incident that occurred on September 29, 2012. The plaintiff sustained injuries
when he fell while riding a bus (the “Accident”).

[2]            
The trial commenced on February 26, and concluded on February 28, 2014.
Reasons for judgment were rendered on March 7, 2014, and are indexed at 2014
BCSC 542.

[3]            
I apportioned liability two thirds against the defendants and one third
against the plaintiff. I assessed the plaintiff’s total damages at $35,100, two
thirds of which is $23,376.66.

[4]            
The reasons concluded:

[128]    The plaintiff is
entitled to two thirds of his assessed costs in accordance with Rule 15-1(15),
unless there are other factors pertaining to this issue of which I should be
made aware. If that is the case, either party has leave to apply to speak to
the matter of costs.

[5]            
The plaintiff applies to recover two thirds of the costs of this action,
including the costs of the trial, in accordance with Rule 15-1(15) of the Supreme
Court Civil Rules (the “Rules”).

[6]            
The defendants seek an order depriving the plaintiff of his costs and
disbursements from the date of their formal offer to settle, being November 20,
2013. They also seek their costs from this date pursuant to Rules 9-1(5) and
(6). They do not seek double costs.

II: Offers to Settle

[7]            
By the beginning of November 2013, there had been several offers to
settle made by both parties. This application only concerns the last two offers
before the trial, both of which were made by the defendants.

[8]            
By letter dated November 20, 2013, the defendants delivered an offer to
settle for $32,500 plus costs and disbursements (the “Formal Offer”). The
Formal Offer contained the words required by Rule 9-1(1)(c)(iii). It provided
in part as follows:

The Defendants reserve the right
to bring this offer to the attention of the court for consideration in relation
to costs after the court has pronounced judgment on all other issues in the
proceeding. The Defendants further reserve the right to bring all previous
offers delivered by the Defendants, whether under Rule 37, Rule 37A, Rule 37B,
Rule 9-1 or otherwise, to the attention of the court for consideration in
relation to costs after the court has pronounced judgment on all other issues
in the proceeding(s).

This was referred to by G.C. Weatherill J. in Arsenvoski
v. Bodin, 2014 BCSC 199, as the “magic language”.

[9]            
The Formal Offer also contained an Appendix A with the following terms:

3.         This
offer can be withdrawn only by written notice by the Defendants to the
Plaintiff.

4.         This offer to settle does not
expire by reason that a counter offer is made or that the Defendants have made
subsequent offers that do not attract costs consequences under Rule 9-1.

[10]        
The Formal Offer remained open for acceptance until 4:00 pm “on the last
business day before the commencement of the first day of trial in this
proceeding, after which time this offer to settle expires”. That was February
25, 2014.

[11]        
By e-mail at 2:30 pm on December 11, 2013, the defendants delivered
another offer, this time for $35,000 plus costs and disbursements (the
“Informal Offer”). The Informal Offer expired at noon on December 13, 2013, two
days later. This offer did not contain the magic language. It simply stated as
follows:

…I have just received
instructions to offer your client $35,000 plus C&D as agreed or assessed in
full and final settlement of this matter. This offer will remain open until
noon Friday. Certainly, if you wish to discuss the offer or anything else on
this file … please don’t hesitate to call.

[12]        
The plaintiff never officially responded to either the Formal or
Informal Offers.

[13]        
Examinations for discovery were completed between the dates of these
offers.

III: Parties’ Positions

[14]        
The plaintiff’s position can be summarized as follows:

·       a
subsequent offer revokes a previous offer: Arsenvoski at para. 15;

·       the
Formal Offer was revoked by the Informal Offer; and

·      
the Informal Offer expired, leaving no offer open for acceptance
after December 13, 2013.

[15]        
The plaintiff also contends that the Formal Offer was ambiguous in that
no form of release was included: Wong-Lai v. Ong, 2012 BCSC 1569 at
para. 47. Therefore, even if the Formal Offer was not revoked, the plaintiff
did not act unreasonably in not accepting it in any event.

[16]        
The defendants seek to enforce the Formal Offer. Their position
includes:

·       Rule
9-1 is silent with respect to how and when a formal offer to settle is
withdrawn. Therefore, the common law applies: Arsenvoski at para. 14; Janzen
v. Janzen, 2011 BCSC 1146 at paras. 14-32;

·       under
the common law, revocation or withdrawal of a formal offer must occur in clear
and unambiguous terms, and may be oral or written: Pollock v. ICBC, 2009
BCSC 1031 at para. 16; Janzen at paras. 23, 33-52;

·       the
Formal Offer contained clear and unambiguous language such that it could not be
revoked by the Informal Offer; and

·      
the Informal Offer was available for acceptance for approximately
48 hours. Afterwards, the Formal Offer would again be open for acceptance by
the plaintiff until the last business day before the trial.

[17]        
The defendants also contend that the Formal Offer was not ambiguous.
They submit that the decision in Wong-Lai can be distinguished on the
facts of this case.

IV: Discussion

[18]        
The threshold issue on this application is whether there is a valid offer
to settle before the court on the issue of costs. The following questions arise
for determination:

1.    
Was the Formal Offer revoked by the subsequent Informal Offer?

2.     Was the
Formal Offer ambiguous in that no release was attached?

[19]        
Lastly, if the Formal Offer remained open for acceptance until the eve
of the trial, what effect should it have, if any, on the costs of this
proceeding?

[20]        
For the reasons outlined below, I conclude that the Formal Offer is a
valid offer to settle properly before the court for consideration on the issue
of costs.

1. Was the Formal Offer revoked by the subsequent Informal
Offer?

[21]        
I agree with the defendants, on the basis of the relevant authorities, that
in the absence of language in Rule 9-1 with respect to how and when a formal
offer can be withdrawn, the common law applies.

[22]        
The plaintiff relies heavily on Arsenvoski, a recent decision of
Mr. Justice G.C. Weatherill. In that case, Weatherill J. reached the conclusion
that a subsequent informal offer revoked a previous formal offer. To understand
the context in which I have reached my conclusion, I will outline what occurred
in that case.

[23]        
The facts in Arsenvoski were as follows:

·       August
25, 2011: defendants’ first formal offer;

·       September
21, 2011: plaintiff’s first formal offer;

·       July
4, 2013: plaintiff’s second formal offer; and

·       July
19, 2013: defendants’ informal offer.

On August 7, 2013, the plaintiff purported to accept the
defendants’ first formal offer.

[24]        
The issue in Arsenvoski was whether the defendants’ first formal
offer was open for acceptance after receipt of the informal offer, such that an
enforceable agreement to settle the case existed. As is the case here, the
informal offer did not contain the magic language. The plaintiff in Arsenvoski
conceded that if the informal offer had contained the magic language, then the defendants’
first formal offer would have been revoked.

[25]        
Weatherill J. reviewed the relevant jurisprudence. He held that, under
Rule 9-1, a “settlement offer, formal or informal, is revoked upon the
communication of a new settlement offer, formal or informal”:

[12]      This is a case of first instance under Rule 9-1.
All of the cases relied upon by plaintiff’s counsel were in the context of the
Rule 37, which expressly provided for how a formal offer to settle could be
withdrawn before acceptance. The one exception is the decision of Madam Justice
Fitzpatrick in Janzen where she found that, although there had been a
clear and unequivocal rejection by the plaintiff of the defendant’s
counter-offer, there had not been a clear and unambiguous revocation by the
plaintiff of her earlier formal settlement offer. In that case, the plaintiff
had not made a new settlement offer.

[13]      Here, the [informal] defendants’ Second Offer
stated: “My clients would, however, accept a Consent Dismissal Order in
exchange for a waiver of their costs”. Those words amounted to a new settlement
offer. There was nothing unclear or unequivocal [sic] about them.

[14]      I agree with defendants’ counsel that in the
absence of language in Rule 9-1 regarding how and when a formal settlement
offer is withdrawn, the common law applies.

[15] I do not accept the argument that a formal
settlement offer is not revoked by an informal settlement offer. While that may
have been the case under the language of former Rule 37, it is no longer the
case under Rule 9-1. A settlement offer, formal or informal, is revoked upon
the communication of a new settlement offer, formal or informal. I agree
with the following statement of the law by Wilson J. in Sidhu v. Sekhon,
[1997] B.C.J. No. 102 (S.C.) at para. 8:

I think interpretation of the rule
contemplates the application of principles of contract law. And that those
principles must be implemented before resort is had to policy considerations.
In my view, those principles establish a number of precepts. First, an offer
may be withdrawn before acceptance. It is sufficient for that purpose, if the
offeree has actual knowledge that the offeror has done some act inconsistent
with the continuance of the offer. Further, the addition of a new term or
condition, to an earlier offer, before acceptance, is the withdrawal of the
earlier offer, and the submission of a new offer, of which the new condition or
term is a part. From the time the new condition is submitted, the earlier offer
is withdrawn, and is no longer open to acceptance or rejection, by the party to
whom it was presented. Finally, there can be only one offer outstanding at a
time. A later offer to the same offeree, on the same subject matter, has the
effect of cancelling the prior offer.

[Emphasis added.]

[26]        
In the result, Weatherill J. held that the defendants’ informal offer
revoked their first formal offer. Accordingly, he dismissed the plaintiff’s
application to enforce the settlement agreement.

[27]        
In R. v. Williams, 2013 BCSC 1774 at para. 59, Romilly J. cited R.
v. Ottaway (1980), 110 D.L.R. (3d) 231 (B.C.C.A.), wherein Seaton J.A., referring
to Re Hansard Spruce Mills Ltd., [1954] 4 D.L.R. 590 (B.C.S.C.), said
the following at 233:

Barring a distinguishing feature, I think that the
Chambers Judge was correct in following a former decision of a Judge of the
same Court

[Emphasis added.]

[28]        
There are many distinguishing features here. The facts in this case are
fundamentally different from those in Arsenvoski. Here:

·       the
Formal and Informal Offers were made consecutively by the same parties, i.e.
the defendants’ Informal Offer was not a counter offer;

·       the
Informal Offer was a temporary increase of the proposed settlement amount which
was open for acceptance for two days. In other words, there was only one offer
open for acceptance at any given time;

·       the
Formal Offer could only be withdrawn by written notice from the defendants to
the plaintiff;

·       the
Informal Offer did not contain a clear and unambiguous withdrawal or revocation
of the Formal Offer;

·       a
subsequent offer such as the Informal Offer was specifically contemplated in
the Formal Offer; and

·      
both the Formal and Informal Offers provided timeframes after
which they would expire.

[29]        
In Arsenvoski, the defendants’ informal offer was a counter offer
to the plaintiff’s second formal offer. It was made during a back-and-forth
negotiation between counsel over the course of two years. There was no reference
in the Arsenvoski reasons for judgment regarding how long any of the
offers were open for acceptance or if they eventually expired, or how and when
an offer could be withdrawn or revoked. In addition, the wording of the
defendants’ informal offer clearly and unambiguously rejected the plaintiff’s
second formal offer:

I write pursuant to your settlement offer of July 4, 2013.

My clients have instructed me to reject your client’s
offer to settle. My clients would, however, accept a Consent Dismissal
Order in exchange for a waiver of their costs.

[Emphasis added.]

[30]        
In the case before me, the Informal Offer was not a counter offer;
rather, it was made by the same parties who made the Formal Offer. The Informal
Offer was a $2,500 increase available to the plaintiff for a period of two days
(during which time the Formal Offer was suspended). After that, the Formal
Offer remained extant until the last business day before the trial. There was
only one offer open for acceptance at any given time. This is further shown by
the clear and unequivocal terms in Appendix A of the Formal Offer regarding how
and when that offer could be withdrawn or revoked.

[31]        
Furthermore, the language used in the Informal Offer contained no
indication of a clear and unambiguous withdrawal or revocation of the Formal
Offer:

I appreciate the intentions you
indicated with respect to his file at the discovery. However, I have just
received instructions to offer your client $35,000 plus C&D as agreed or
assessed in full and final settlement of this matter. This offer will remain
open until noon Friday. Certainly, if you wish to discuss the offer or anything
else on this file … please don’t hesitate to call.

[32]        
In my view, this is a material point of distinction from the offers in Arsenvoski.

[33]        
In addition, according to Appendix A, the Formal Offer could “be
withdrawn only by written notice by the Defendants to the Plaintiff”, and
did “not expire by reason that a counter offer is made or that the
Defendants have made subsequent offers that do not attract costs consequences
under Rule 9-1” (emphasis added). The language of the Formal Offer,
accordingly, specifically contemplated the subsequent Informal Offer.

[34]        
I conclude there are sufficient distinguishing features in this case
from those in Arsenvoski such that I am not bound to follow that
decision, in particular what is stated in para. 15 as cited in para. 25 above.
That is because, were I to do so, this would not advance the interests of
justice on the facts of this case as opposed to those in Arsenvoski. In
my view, the distinguishing features are “exceptional circumstances” in which
it is appropriate to decline to follow the decision in Arsenvoski: R.
v. Sipes, 2009 BCSC 285 at paras. 10-16. See also: Chief Mountain v.
British Columbia (Attorney General), 2011 BCSC 1394 at paras. 74-99, aff’d
2013 BCCA 49 (sub nom. Sga’nism Sim’augit (Chief Mountain) v. Canada
(Attorney General)), cited in R. v. Widalko, 2013 BCSC 2077 at para.
19 (sub nom. R. v. Widaiko).

[35]        
The offers before me are not the same as those contemplated in Arsenvoski.
Accordingly, the Informal Offer did not revoke the Formal Offer in this case.

[36]        
I also recognize the court’s broad discretion that exists on an
application such as this pertaining to costs following a trial, as
distinguished from the enforceability of an alleged settlement agreement which
was the case in both Arsenvoski and Janzen.

[37]        
Offers to settle and costs orders were recently reviewed by the Court of
Appeal in Wafler v. Trinh, 2014 BCCA 95.

[38]        
In Wafler at para. 61, the Court of Appeal stated:

[61]      An award of costs is
highly discretionary and only susceptible to appellate intervention if the
judge erred in principle or reached a decision that is clearly wrong: Little
Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue),
2007 SCC 2 at paras. 48-49.

[39]        
The broad purpose of Rule 9-1 and the court’s discretion under it in
relation to costs were discussed at paras. 79-84. The Court of Appeal noted at
para. 79:

[79]      Pursuant to Rule 14-1(9) of the Supreme Court
Rules, Mr. Wafler, as the successful party, is entitled to his costs unless
the court orders otherwise. Pursuant to Rule 9-1(4), the court may
consider an offer to settle when exercising its discretion in relation to
costs. Rule 9-1(5) enumerates the orders the court may make. In making
an order under subrule (5), the court may consider the factors listed in
subrule (6).

[Emphasis in original.]

[40]        
The Court of Appeal then went on to reiterate the purposes for which the
costs rules exist, one of which is the general proposition that a plaintiff who
rejects a reasonable offer should face some sort of sanction. With respect to
the difference between former Rule 37 and current Rule 9-1, it was held at
para. 82:

[82]      That said, under the present Rule, unlike its
predecessor which mandated the result, it is for the trial judge to determine
in any particular case the nature and scope of whatever sanctions are to be
applied. The permissive wording in Rules 9-1(5) and (6) indicates the
legislature intended to preserve the historically discretionary nature of costs
awards, including an award of costs where an offer to settle has been made.

[Emphasis added.]

[41]        
Therefore, even if I had found that the Informal Offer revoked the
Formal Offer in this case, I would still consider the Formal Offer in any event
given the fact that it was “made”.

2. Was the Formal Offer ambiguous in that no
release was attached?

[42]        
The Formal Offer provided:

On acceptance of this offer, the
Plaintiff agrees to execute and deliver a Full and Final Release in respect of
Carl Neuhold, South Coast BC Transportation Authority, and The Corporation of
the District of West Vancouver and to consent, by his solicitor, to a Consent
Dismissal Order.

[43]        
The Formal Offer did not contain a copy of the release referred to, nor
was one ever provided by the defendants.

[44]        
At no time prior to the court raising this issue during submissions on
May 26, 2014, did the plaintiff take the position that the Formal Offer was
ambiguous, nor did he make any inquiry of defendants’ counsel regarding the
terms of the proposed release.

[45]        
Relying on Wong-Lai, the plaintiff’s position is that there was
ambiguity in the Formal Offer. He says that, taking into account Part 7
benefits paid or payable pursuant to s. 83 of the Insurance (Vehicle) Act,
R.S.B.C. 1996, c. 231, “[t]ypically, ICBC’s form of release includes a release
of Part 7 benefits as well as a release of the tort claim”.

[46]        
In my view, Wong-Lai is entirely distinguishable from the facts
of this case. There, the plaintiff’s husband was killed in a pedestrian-motor
vehicle collision. Mr. Justice Sewell, in a situation involving an offer to
settle that referred to a release but where no form of release was included
with the offer, concluded that the offer to settle was ambiguous.

[47]        
It is clear from that decision, however, that Sewell J. was cognizant of
the fact that the plaintiff was also entitled to bring a claim against the
defendants pursuant to the Family Compensation Act, R.S.B.C. 1996, c.
126, with respect to the death of her husband. This was not addressed in the
offer, particularly in the reference to the requirement of a release.
Accordingly, there was ambiguity in the words “in respect of the defendants”,
as set out in the reference to a release in the offer.

[48]        
There is no such ambiguity in this case. The Formal Offer is clear and
unambiguous. It identifies the parties to be released. ICBC is not mentioned.

[49]        
Insofar as the alleged ambiguity is concerned, this case is essentially
analogous to Ballen v. Ballen, 2000 BCSC 261. At paras. 17-22, Skipp J.
stated:

[17]      Counsel for the defendant referred to Falls v.
Falls (1995), 13 B.C.L.R. (3d) 369. In that case Vickers J. referred to his
decision in Morck v. Soragnese (1994), 87 B.C.L.R. (2d) 263 and to a
passage therefrom at page 270 as follows:

The test of whether there has
been compliance lies in the answer to two simple questions. Could the person
receiving the offer have been in any doubt as to its terms. If so, was there a
burden on that person to clarify its terms prior to acceptance.

[18]      I note that the defendants made an offer to settle
herein and no objection was made by the plaintiff at that time to that offer
being ambiguous and on the contrary the plaintiff speedily countered with an
offer to settle [three weeks later], escalating from $225,000.00 to
$400,000.00.

[19]      Counsel for the defendants rely on Fieguth v.
Acklands Limited (1989), 37 B.C.L.R. (2d) 62. For the proposition that a
defendant’s offer to settle which stipulates that the plaintiff is to execute a
full and final release of claim which offer also contains a reference to a
consent order, does not invalidate an offer to settle.

[20]      In Fieguth McEachern CJBC concerning
disagreements with respect to documentation consequent upon a settlement wrote,
“In such cases the settlement will be binding if there is agreement on the
essential terms”. He continued, “When disputes arise in this connection the
question will seldom be one of repudiation as the test cited above is a strict
one, but whether a final agreement has been reached which the parties intend to
record in formal documentation”.

[21]      Counsel for the defendants then referred to Carlson
v. Stewart, [1999] B.C.J. No. 241, (BCSC) wherein Taylor J. as he then was
set out the approach to be taken to determine whether an offer to settle is
ambiguous. The germane excerpt from his reasons is as follows:

The offer to settle by a
defendant must be unambiguous and this court should be reticent to conclude
ambiguity particularly with that issue is only raised by the plaintiff after
the trial.

[22] Here the plaintiff, through her counsel, made no
inquiry as to the terms of the offer nor did her counsel complain about
ambiguities. As observed by Boyle J. in Keller v. Whyte, [1996]
B.C.J. No. 705 (BCSC) at paragraph 11

The strength goes out of the
protest when no response was made at all.

To that observation I add, “when the only response is a
counter offer”.

[Emphasis added.]

See also: Gill v. Gill, 2004 BCSC 1261; Anderson
v. Routbard, 2007 BCCA 193 at para. 16, cited in Gichuru v. Pallai,
2012 BCSC 1316 at para. 18.

3. Conclusion on the Formal Offer

[50]        
Since the Formal Offer was not ambiguous and was neither revoked nor
withdrawn, it remained open for acceptance from November 20, 2013, until the
last business day before the trial (except for the two days during which the
plaintiff would have received an additional $2,500 under the Informal Offer).

V: Analysis Regarding Costs

1. Applicable Principles

[51]        
The applicable law has recently been conveniently summarized by Mr.
Justice Voith in Brewster v. Li, 2014 BCSC 463. After setting out Rules
9-1(4) to (6), he stated:

[14]      The present Rules provide the court with
considerable discretion to define and fix an appropriate cost award: see Bailey
v. Jang, 2008 BCSC 1372 at para. 10; Bennett v. Scanlan, 2010 BCSC
50 at para. 29. That discretion is, however, constrained by the considerations
outlined in subparagraph (6); Bailey at para. 18.

[15]      The regime in Rule 9-1 can advance various
important objects: see for example Lakhani v. Elliott, 2010 BCSC 281 at
paras. 11-16; Bailey at para. 18. Its dominant and overarching object,
however, is to promote reasonable settlements and to attach some consequence to
the failure of a party to accept a reasonable settlement: Bennett at
para. 28, Gonzales v. Voskakis, 2013 BCSC 675 at para. 13.

[16]      This dominant object was summarized in Catalyst
Paper Corporation v. Companhia de Navegação Norsul, 2009 BCCA 16, where the
court said at para. 16:

It seems to me that the trend of recent authorities is to
the effect that the costs rules should be utilized to have a winnowing function
in the litigation process. The costs rules require litigants to make careful
assessments of the strength or lack thereof of their cases at commencement and
throughout the course of litigation. The rules should discourage the
continuance of doubtful cases or defences. This of course imposes burdens on
counsel to carefully consider the strengths and weaknesses of particular fact
situations. Such considerations should, among other things, encourage
reasonable settlements.

[52]        
In Giles v. Westminster Savings and Credit Union, 2010
BCCA 282, Frankel J.A., writing for the Court, stated at paras. 74-75:

[74]      The purposes for which costs rules exist must be
kept in mind in determining whether appellate intervention is warranted. In
addition to indemnifying a successful litigant, those purposes have been
described as follows by this Court:

·       
“[D]eterring frivolous actions or defences”: Houweling
Nursuries 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.

[75]  Lastly, it must be also
remembered that “the person who seeks to displace the usual rule [as to costs]
has the burden of persuading the judge that the rule should be displaced”: Grassi
v. WIC Radio Ltd., 2001 BCCA 376, 89 B.C.L.R. (3d) 198 at para. 24.

2. Discussion

[53]        
The factors for consideration under Rule 9-1(6) are as follows:

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.

[54]        
The first consideration is whether the Formal Offer was one that ought
reasonably to have been accepted by the plaintiff.

[55]        
This question is not to be addressed with the benefit of hindsight, that
is, with the knowledge of the award that was ultimately made: Bailey v. Jang,
2008 BCSC 1372 at para. 24; A.E. v. D.W.J., 2009 BCSC 505 at para. 55,
aff’d 2011 BCCA 279 (sub nom. Evans v. Jensen); Hartshorne v.
Hartshorne, 2011 BCCA 29 at para. 27.

[56]        
A factor that can be taken into account is whether the offer was well
within the range of outcomes that could reasonably have been expected: A.E.
v. D.W.J., cited in Hartshorne at para. 27; Brewster at para.
22.

[57]        
It is clear that liability was very much in issue in this proceeding.
There is also the fact that in light of the plaintiff’s health issues prior to
the Accident and his advanced age this placed any future losses within a
reasonably finite timeframe. Accordingly, the claim for damages was relatively
modest.

[58]        
In my view, under the set of circumstances to which I have referred and
which existed during the trial in February 2014, the risks the plaintiff
assumed in not accepting the Formal Offer ought to have been readily apparent
to him when he received the Formal Offer, or within a reasonable period of time
thereafter. In any event, it remained open until the last business day before
the trial. I find that the plaintiff ought reasonably to have accepted the
Formal Offer.

[59]        
The second consideration, being the relationship between the terms of
the settlement offered and the final judgment of the court, is not to be given
undue weight: Gonzalez v. Voskakis, 2013 BCSC 675 at para. 36.
Nevertheless, this factor also favours the defendants.

[60]        
The relative financial circumstances of the parties are not a relevant
consideration on the facts of this case. As well, neither party suggested any
additional factors for me to consider.

[61]        
As I have noted, there is a wide discretion available to me on the issue
of costs. I conclude that the plaintiff is entitled to two thirds of his
assessed costs and disbursements to the date of the Formal Offer.
Notwithstanding the defendants’ ultimate success at trial in relation to the
amount of damages awarded to the plaintiff, I am of the view that it is
equitable on the facts of this case for the defendants to recover 25% of their
assessed costs and disbursements from the date of the Formal Offer to the
conclusion of this proceeding.

[62]        
That is because, although the Formal Offer ought to have been accepted,
there was a wide range in what the liability apportionment could have been.
This was also the case with respect to damages, particularly non-pecuniary
loss. The plaintiff has already suffered some significant financial
consequences in proceeding to trial. The amount of damages I awarded is
approximately $10,000 less than what he would have received had he accepted the
Formal Offer, without taking costs into account.

[63]        
Both the plaintiff and defendants’ costs are to be assessed pursuant to
Rule 15-1.

“Abrioux
J.”