IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150601

Docket: M115086

Registry:
Vancouver

Between:

Jessica White

Plaintiff

And

Francis Miao Wang,

Nissan Canada,
Inc., Lance Joseph Burley and

Ronald Alonzo
Saunders

Defendants

Before:
The Honourable Madam Justice Fleming

Oral Reasons for Judgment

In
Chambers

[1]            
THE COURT: The plaintiff, Jessica White, was injured in a motor
vehicle accident that occurred on October 3, 2009. The defendants admitted
their liability. On December 22, 2014, following a seven‑day trial, I
awarded the plaintiff damages of $129,998.49, for the losses she suffered or
will suffer due to the accident. The trial judgment is indexed at 2014 BCSC
2416.

[2]            
The plaintiff now applies for an award of double costs for all steps
taken in the proceeding after June 6, 2014, based on an offer to settle made
that day to the defendants.

[3]            
The trial of this matter commenced on June 9, 2014. The parties
exchanged offers to settle prior to the trial, the details of which are as
follows:

On March 24, 2014, the defendants offered to settle the
action for $26,000 new money plus.

On May 14, 2014, the plaintiff’s counsel made an offer to
settle the action for $199,767 plus costs, in the context of a comprehensive
settlement proposal.

On June 3, 2014, the defendants offered to settle for $54,465
plus costs.

On June 5, 2014, the plaintiff made an offer to settle for
$121,300, after deducting Part 7 benefits paid or payable, costs, and disbursements.

On June 6, 2014, the defendants
informally offered the plaintiff $75,000 plus costs by way of email. On the
same day, the plaintiffs made another offer to settle for $105,000 plus costs. The
offer was left open until 9:00 a.m. on June 9, 2014.

Legal Framework

[4]            
Rule 9‑1 of the Supreme Court Civil Rules, B.C. Reg.
168/2009 permits the court to take into account an offer to settle in making an
award of costs. Pursuant to Rule 9‑1(5)(b), the court may award double
costs of all or some of the steps taken in a proceeding after the date of
delivery or service of the offer to settle. The factors the court may consider
in making such an order are set out in Rule 9‑1(6):

(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.

[5]            
In Hartshorne v. Hartshorne, 2011 BCCA 29, the Court of Appeal
described an award of double costs as a punitive measure taken against a party
for his or her failure to accept an offer to settle that, in all the
circumstances, should have been accepted. The court in that case went on to
review the purposes of the costs rules, identified as follows: deterring
frivolous actions or defences; encouraging conduct that reduces the duration
and expense of litigation and discouraging conduct that has the opposite
effect; encouraging litigants to settle wherever possible, thus freeing up
judicial resources for other cases; and having a winnowing function in the
litigation process by requiring litigants to make a careful assessment of the
strength, or lack thereof, of their cases throughout the litigation.

[6]            
I turn to consider the factors set out in Rule 9‑1(6), bearing in
mind this framework.

           
(a)         
Whether the offer ought reasonably to have been accepted

[7]            
The first factor, whether the offer was one that ought reasonably to
have been accepted by the defendants, is not determined by reference to the
award that was made. Instead, reasonableness is assessed based on the
circumstances that existed when the offer was made (Hartshorne at para.
27).

[8]            
The defendants take the position the plaintiff’s offer of June 6, 2014,
was not one that they ought reasonably to have accepted because of the interplay
of its late delivery and the absence of an explanation or rationale for the
reduction in the amount initially proposed, approximately $199,000 to approximately
$105,000.

[9]            
It is true the plaintiff’s last of three offers did not include an
explanation. However, it followed an exchange of offers between the parties
that began with the defendants’ very low offer of $26,000 in March 2014, which
came with no rationale. Almost two months later, on May 14, 2014, the plaintiff
sent her first offer in the form of a comprehensive settlement proposal which
specified the amounts proposed for each head of damage, reviewed her injuries,
symptoms, treatments, and the medical evidence regarding causation and
prognosis. Further, the proposal included a detailed analysis of the facts and
the relevant case law regarding each head of damage.

[10]        
At the time the plaintiff’s final offer was delivered, all of the pre‑trial
fact finding had been completed for some time, including examinations for discovery,
et cetera. All of the medical evidence had been properly exchanged and was
in hand. The parties had attended a trial management conference where the
issues were canvassed. Poised for trial, the parties were in as good a position
as they would ever be to assess the relative strengths and weaknesses of the
case.

[11]        
With respect to the issue of timing, Rule 9‑1 does not specify
when an offer must be made in advance of trial. The question of what is a
reasonable amount of time to consider an offer is largely driven by context (Brewster
v. Li, 2014 BCSC 463 at paragraph 26).

[12]        
In Bennett v. Scanlan, 2010 BCSC 50, the court
concluded the plaintiff should have accepted a second offer made shortly before
trial, in part because the impact of the offer’s lateness was tempered by the
plaintiff’s awareness of the settlement negotiations that had occurred between
counsel.

[13]        
In J.D. v. Chandra, 2014 BCSC 1272, Madam Justice Griffin awarded
double costs against the defendant in relation to an offer made by the
plaintiff at the end of the day on the Friday before a trial that commenced the
following Monday morning. Counsel for the defendants submitted he did not see
the offer until Saturday morning. The offer was made as part of an ongoing
exchange of offers and the parties had attended a judicial settlement
conference. The court observed there was nothing complicated about the offer.

[14]        
In coming to her decision, Griffin J. considered Bevacqua v. Yaworski,
2013 BCSC 29. In that case, the court accepted the defendant’s position that an
offer delivered on the eve of trial to the plaintiff ought to deprive her of
her costs on the following analysis:

[8] In personal injury claims, in
which liability has been admitted, there is in most cases a somewhat
predictable range of possible awards. It is to be expected that counsel taking
a case to trial will have discussed with their clients the possible range of
damages, the evidentiary issues and the risks of and expense of proceeding to
trial. It is to be expected therefore that as the trial approaches, counsel and
their client have in mind a possible range of recovery and the risks of
litigating. Naturally, a plaintiff hopes for an award in the high end of the
range and the defendant for an award at the low end.

[15]        
Justice Griffin noted the defendants before her were represented by
experienced counsel for ICBC and they were in a good position to analyze and
respond to an offer within hours, if not minutes.

[16]        
The plaintiff here makes much the same point. ICBC, on behalf of the defendants,
unlike the plaintiff, has considerable experience in litigating and settling
claims, and is therefore much better poised to consider an offer quickly in
light of that experience. I agree. In all the circumstances, I conclude the
offer made by the plaintiff on June 6, 2014, is one the defendants ought
reasonably to have accepted.

           
(b)         
What is the relationship between the terms of settlement offered and the
final judgment of the court?

[17]        
The last offer made by the plaintiff is considerably less than the
amount I awarded her, which included amounts for each of the heads of damage
claimed. This factor clearly favours the plaintiff.  Although this factor
should not be given undue weight, it is not insignificant.

           
(c)         
The relative financial circumstances of the parties

[18]        
It is now well established that ICBC’s involvement on behalf of the
defendant can be relevant. Ms. White did not provide any further evidence as to
her financial circumstances or whether she had entered into a contingency‑fee
arrangement with her counsel. I agree with the defendants that such an
arrangement mitigates an otherwise obvious imbalance in the relative financial
circumstances of the parties.

[19]        
Assuming such an arrangement, in my view, the factor continues to be at
play in the circumstances of this case. The evidence at trial clearly
established that Ms. White earns a very modest income working full‑time
in an office. She is a single parent who juggles the demands of parenting,
working full‑time, while still suffering from some symptoms of her
injuries. Her employment provides no job security.

[20]        
Having testified over several days at the trial, she was very distressed
at the thought of not concluding her evidence, fearing the loss of her job.
Proceeding to trial rather than settling the action posed an immediate
financial risk for the plaintiff not borne by the defendants here. I therefore
conclude this factor also favours the plaintiff to some degree.

Conclusion

[21]        
Based on all of the circumstances and my analysis of the factors set out
in Rule 9-1(5)(b), I conclude the plaintiff  should be awarded double costs
from the first day of trial. Accordingly that order is made.

[22]        
The plaintiff will also have her costs for this application.

“Fleming
J.”