IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140731

Docket: M125109

Registry:
Vancouver

Between:

Veronica Yip

Plaintiff

And

Tanya Sherrie Saran

Defendant

Before:
The Honourable Madam Justice Adair

Oral Ruling Re Costs

In
Chambers

[1]            
THE
COURT: This is my ruling.

[2]            
On July 11, 2014, I issued Reasons for Judgment in this Fast Track
action in which the plaintiff sought compensation for injuries and damage
suffered in a motor vehicle accident that occurred on January 25, 2011.  My
reasons are indexed at 2014 BCSC 1283.

[3]            
I left counsel to calculate an amount in relation to special damages,
and the final judgment amount is $72,802.02 plus court order interest.

[4]            
I have now heard submissions on costs.

[5]            
Mr. Chang, on behalf of the plaintiff, seeks an order for costs,
reasonable disbursements and taxes for the entirety of the proceedings plus
double costs for the portion of the proceedings (essentially the five days of
trial) that occurred after delivery to the defendant of the plaintiff’s offer
to settle on March 11, 2014.

[6]            
Ms. Barnes, for the defendant, says that there is no reason to “otherwise
order” under Rule 15-1(15), and costs should be limited to the lump sum
provided for in Rule 15-1(15)(c), that is $11,000.

[7]            
Rule 15-1(15)(c) provides:

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:

. . .

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

[8]            
Rule 15-1(16) provides:

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

[9]            
It is open to a court to “otherwise order” in cases where special
circumstances warrant the departure from the limits set out in Rule 15-1(15). 
Special circumstances have been held to apply in cases where, for example, the
trial took longer than the maximum amount of days referenced in the Fast Track Rule,
or where a reasonable offer to settle was made but not accepted.  See, for
example, Peacock v. Battel, 2013 BCSC 1902, at paragraphs 17 and
18.

[10]        
Here, the trial was five days, although it had been estimated and
originally set for three.  Ms. Barnes submits that the plaintiff should not be
rewarded by an award of costs for the two extra days of trial and that the
length of trial does not justify departure from the lump sum provided for in
Rule 15-1(15)(c).  She cites Coutakis v. Lean, 2012 BCSC 1447, in
support of her position that where a trial is not conducted efficiently, the
party seeking to depart from the fixed amounts set out in Rule 15-1(15) cannot rely
on the length of trial as “special circumstances” justifying a higher amount of
costs.

[11]        
However, here, unlike Coutakis, there was no finding that
trial time had been wasted by ineffectual or unnecessary examination or cross-examination. 
Although, with the benefit of the hindsight the Reasons provide, it might be
said that some issues could have been covered less thoroughly than they were at
the trial, I do not see that as a reason to penalize the plaintiff.  I
find that the plaintiff is entitled to be compensated for the five days that
the trial took to complete.

[12]        
I turn, then, to the offer to settle dated March 11, 2014.  It stated:

The plaintiff, Veronica Yip,
offers to accept in settlement of this proceeding the sum of $72,604.96 (new
money) plus court order interest, party and party costs at Scale B and all
proper and reasonable disbursements ("offer to settle").

[13]        
The offer to settle was also subject to conditions set out in an Appendix
A attached to the offer to settle.  Appendix A sets out a page of conditions (numbering
12 in total), and includes such conditions as:

2.         This offer to settle can be withdrawn only by
written notice by the plaintiff to the defendants.

3.         This offer to settle
does not expire by reason that a counteroffer has been made by the defendant.

And so on.

[14]        
I note in this regard that the practice that was adopted in relation to Ms. Yip’s
offer to settle is a practice that I have seen in relation to offers to settle
made by defendants in motor vehicle accident cases, where detailed conditions
are set out in a separate schedule or appendix.

[15]        
The relevant parts of Rule 9-1(5) and (6) state:

(5) 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.

(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 accepting either on the date that the offer to settle
was delivered or served or on any later date.

(b) 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.

[16]        
In my opinion, the first two factors under Rule 9-1(6) are the most
relevant here.

[17]        
The first factor under Rule 9-1(6) – whether the offer to settle was one
that ought reasonably to have been accepted – is not determined by a reference
to the award that was ultimately made.  Rather, the reasonableness is to be
assessed by reference to the circumstances existing when the offer was open for
acceptance.  See Hartshorne v. Hartshorne, 2011 BCCA 29, at
paragraph 27.  An offer may be reasonable, but in the circumstances existing
when the offer was open for acceptance, it may not be one that ought reasonably
to have been accepted.

[18]        
In my opinion, the plaintiff’s offer to settle was one that, in the
circumstances, ought reasonably to have been accepted by the defendant.  The
offer was made shortly before the trial was scheduled to begin, but there is no
reason to say that the defendant had insufficient time to consider it.  The offer
was made after the parties had attended a trial management conference where the
issues in the case were canvassed.  It is unlikely that, when the offer was
made, there were many unknowns in the case in terms of the evidence.  For
example, the evidence of one of the plaintiff’s experts, Dr. Purtzki, had
already been taken by video deposition.  The offer had a reasonable
relationship to the plaintiff’s claim and represented a reasonable compromise
from the position on damages that the plaintiff ultimately advanced at trial. 
Although liability was still – formally – in issue, the offer rightly reflected
no discount for that fact, and liability was admitted at the beginning of the
trial.  The offer did not provide much of a discount on the mitigation issue
raised by the defendant, but (as I explained in my Reasons) I think that was
justified.

[19]        
With respect to the relationship between the terms of settlement offered
and the final judgment of the court, the total amount of the judgment is very
close to the amount of the offer to settle.  I see this as a factor favouring
the plaintiff.

[20]        
Therefore, in my opinion, based on the offer to settle, the plaintiff is
entitled to double costs for the five days of the trial.  I adopt the methodology
that was used by Mr. Justice Affleck in Peacock.  That is, is
$6,500 for pre-trial costs, double costs for five days of trial at $1,500 each,
so that totals (after the costs are doubled) $15,000.  This results in total
costs of $21,500.

[21]        
In summary, I award the plaintiff lump sum costs of $21,500 plus taxes
and disbursements.

[22]        
That completes my ruling.

“Adair
J.”