IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Gupta v. Doe, |
| 2015 BCSC 1688 |
Date: 20150918
Docket: M139260
Registry:
New Westminster
Between:
Shalini Gupta
Plaintiff
And
John Doe and / or
Jane Doe and
Insurance
Corporation of British Columbia
Defendants
– and –
Docket: M149192
Registry:
New Westminster
Between:
Shalini Gupta
Plaintiff
And
Roberto Mantelli
and Blaaks Enterprises Ltd. doing business as
White Rock Sports
Defendants
– and –
Docket: M159081
Registry:
New Westminster
Between:
Shalini Gupta
Plaintiff
And
Rinki Gera and
Pankaj Kataria
Defendants
Before:
The Honourable Mr. Justice Jenkins
Reasons for Judgment on Costs
Counsel for the Plaintiff: | P. Tung |
Counsel for the Defendants: | R. Moen |
Place and Date of Hearing: | New Westminster, B.C. September 11, 2015 |
Written Submissions of Plaintiff: | May 19, 2015 |
Written Submissions of Defendants: | June 10, 2015 |
Place and Date of Judgment: | New Westminster, B.C. September 18, 2015 |
[1]
These actions concern the plaintiffs claims for damages arising from
three separate motor vehicle accidents which occurred in 2009 and 2014, the
most serious of which – with regards to the injuries suffered – having occurred
on March 11, 2011. My reasons for judgment following a nine day trial were
issued April 30, 2015 and were indexed under 2015 BCSC 608.
[2]
Both the plaintiff and the collective defendants and insurer are now
before me seeking orders for the payment of costs by the opposing parties.
[3]
In my reasons for judgment, the plaintiff was found to be entitled to
the following relief:
a) Non-pecuniary
damages: $30,000;
b) Past income
loss: limited to the 28 days of lost work to be calculated by the parties
(totalling $2,445.62 as agreed to by counsel);
c) Cost of
future care: $7,211;
d) Special damages:
$3,643.
[4]
The plaintiffs claim for future income loss was by far the largest
claim made by the plaintiff and a very significant portion of the evidence at
trial related to the claim for future income. The claim for future income was
dismissed, primarily based upon the lack of credibility of the plaintiff as
detailed in the reasons for judgment.
[5]
The defendants offered to settle the claims in all three actions for the
sum of $90,000 on August 14, 2014, approximately two months before the trial
was scheduled to commence. There were subsequent offers made by the defence
increasing the offer to $100,000 on October 16, 2014 and to $164,000 three days
before the trial commenced. Although liability was admitted relatively early
for the accidents of 2011 and 2014, liability for the 2009 accident was only
admitted shortly before trial after the defendant Insurance Corporation of
British Columbia (ICBC) had alleged fraud. The property loss from the 2009
accident was paid after the admission of liability for that accident.
Submissions of the Plaintiff
[6]
The plaintiff submits that she was the successful party under R. 14-1
of the Supreme Court Civil Rules. She relies upon the Court of
Appeal decision in Loft v. Nat, 2014 BCCA 108 at para. 46 to
submit that the successful party is the plaintiff who establishes liability
under a cause of action and obtains a remedy or a defendant who obtains a
dismissal of an action. She further says that in obtaining judgment for the
amounts stated above that she must be considered to be the successful party
under Rule 14-1 and the test set out in Loft even though the plaintiff
had sought a much greater award of damages.
[7]
In claiming costs for all three actions, the plaintiff submits that the
offers could not reasonably be accepted. Accordingly the offers should not be
considered by me in a determination of costs and the plaintiff would then be
entitled to her full costs of the trial at Scale B. The plaintiff alleges that
the offers could not reasonably be accepted based upon the available medical
and employment evidence at the time the offers were made by the defence.
[8]
If it is found the offers could reasonably be refused, then alternatively,
the plaintiff submits that she is entitled to her full costs to the date of the
offer, ie. August 14, 2014 and that there should be no order for the costs
of these actions thereafter.
[9]
The submissions of the plaintiff relating to the acceptability of the
offers primarily revolve around evidence which came to light during the trial
and was admitted into evidence. This evidence was discussed in my reasons for
judgment at trial. Briefly, the plaintiff had alleged that due primarily to the
March 2011 accident, she was unable to continue in her career with the Bank of
Nova Scotia where she was employed as a part-time teller. She testified that
long hours sitting could not be tolerated as a result of her injuries, and that
she was intending to apply for positions at the bank which would have been less
demanding physically and more remunerative. The quantum of her claim for
damages for loss of future income took into account the earnings she would have
received had she advanced to positions of full-time teller or client service
representative.
[10]
In November of 2011 the plaintiff resigned her position with the bank
and entered into business as a franchisee of a company known as Kumon, which is
engaged in tutoring in mathematics and English to school age children. In her
evidence at trial, she testified that only after she had resigned from her
position at the bank did she decide to pursue a Kumon franchise. Prior to the
trial, the documentary evidence and the evidence of the plaintiff was that she
had first applied for a Kumon franchise in May of 2011, i.e. after the March
2011 accident. Although representatives of Kumon had disclosed documents
relating to the plaintiffs interest in a franchise as of May 2011, it was not
until a witness from Kumon who had been served with a subpoena during the trial
disclosed the plaintiffs inquiries to Kumon in January of 2011, prior to the
March 2011 accident, that the plaintiffs credibility was more seriously
challenged regarding her employment intentions. Based upon the above evidence
and other evidence discussed in my reasons for judgment at trial I found that
the plaintiff was not credible.
[11]
The defence also refers to the opposition of the plaintiff to an
application heard by Master Keighley for document production including
documents relating to the purchase of the Kumon franchise. This application was
opposed by the plaintiff. They suggest this infers that the plaintiff objected
for fear that evidence may reveal her active consideration and inquiries
regarding a Kumon franchise as early as January of 2011.
[12]
Returning to the issues now before me on costs and whether the offers of
the defence could or should have reasonably been accepted, the plaintiff
submits that the evidence of her early inquiries to Kumon were not known to the
parties, especially the defence, when the offers were being considered. The
plaintiff submits that the evidence of her early inquiries was not available
when the offers were received and therefore was not information available to
her to assess the reasonableness of the offers.
[13]
The submissions on behalf of the plaintiff refer to the evidence not
being available, however, the evidence was always available to her. It had only
not yet come to the attention of the defence, although the plaintiff must have
been aware of both the information and that she had withheld evidence of her
early inquiries to Kumon. In effect, when rejecting the offers, she was
assuming the truth would not come to the surface.
Position of the Defence
[14]
The defence position is that the plaintiff is entitled to her costs to
the date of the first offer of August 14, 2014 and that the defence is entitled
to double costs thereafter as the plaintiffs judgment after trial was for
considerably less than the amount of the offer of August 14, 2014 of $90,000.
The defence submits that the offers ought reasonably to have been accepted
considering those offers would have included a consideration of future income
loss which would not have been made had the defence been fully aware of the
plaintiffs inquiries and steps taken to secure a Kumon franchise before the
date of the March 2011 accident.
[15]
The defence further refers to the fact that that counsel for the
plaintiff would not agree to admission of the further Kumon documents which he
says should have been admitted pursuant to a document agreement that had been
entered as an exhibit at trial. Considering the lack of credibility overall of
the plaintiff, the defence suggests that the plaintiffs conduct is an
aggravating factor.
[16]
Based upon the above, the defence submits under Rules 9-1(5) and 9-1(6)
that it should be entitled to double costs from the date of the offer of
August 14, 2014.
Conclusion
[17]
There is agreement between the parties that the plaintiff should have
her costs up to August 14, 2014.
[18]
There is no doubt, based upon the principle set out in Loft, that
the plaintiff was successful in that she obtained a judgment against the
defendants which totals over $43,000 once the past income loss is included in the
award.
[19]
In Loft, however, Justice Goepel outlines at para. 49:
[49] The fact that a party
has been successful at trial does not however necessarily mean that the trial
judge must award costs in its favour. The rule empowers the court to otherwise
order. The court may make a contrary order for many reasons. One example is
misconduct in the course of the litigation: Browne v. Lowe, 2002 BCCA 7,
97 B.C.L.R. (3d) 246. Another is a failure to accept an offer to settle under
Rule 9-1 . . . . . . .
[20]
Rule 9-1(5) provides for four options for orders relating to costs when
an offer to settle has been made. The Court may:
(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 defendants 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.
[21]
Rule 9-1(6) lists considerations the court should consider in making an
order for costs under R. 9-1(5) which may include 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.
[22]
I find that the offer of August 14, 2014 ought reasonably to have been
accepted by the plaintiff. The resistance of the plaintiff to disclosure of
the Kumon documents most likely led the defence to increase its offers as the
defence would have perceived risks in the defence of the claim for future
earnings which would have been much less than that expected by the defence when
the first offers were made. On the other hand, the plaintiff was taking a
chance that all of her activities in pursuing a Kumon franchise would not be
disclosed. Ill-conceived as the future loss of income claim was, it was the
largest of all of the claims of the plaintiff and she stood to be potentially
denied the entire claim, which is what occurred.
[23]
Regarding the second consideration in making an order under R. 9-1(5),
there was a significant gap between the offer and the amount of the judgment
which lends against the position of the plaintiff.
[24]
The third consideration in making an order under R. 9-1(5) is the
relative financial circumstances of the parties. ICBC was the defendant in
the action relating to the 2009 accident and the defendants in all actions were
defended by counsel employed by ICBC. In the case of Cairns v. Gill, [2011]
B.C.J. No. 615, 2011 BCSC 420, Justice Arnold-Bailey stated, at para. 51:
[51] In relation to the
relative financial circumstances of the parties, that the defence is assumed by
an insurer is a relevant consideration. Clearly, the defendants are in a better
financial position to cover their costs of this litigation than the plaintiff
.
This factor favours the plaintiff, but should not be determinative of the
outcome.
[25]
The plaintiff operates a small business which is still in its early
stages of growth and does not have significant financial resources. As a
result, although not determinative at all, the relative financial circumstances
of the parties is a consideration in an award of costs under R. 9-1(5).
[26]
The fourth consideration under Rule 9-1(6), is any other factor the
court considers appropriate In Giles v. Westminster Savings Credit Union (2010),
5 B.C.L.R. (5th) 252, 89 C.P.C. (6th) 41 at para. 88
(C.A.) the court stated:
[88] I appreciate there are
no mandatory factors under Rule 37B(6) and that trial judges have discretion to
take into account whatever factors they consider appropriate in a given case.
[27]
One additional factor which I consider to be appropriate for
consideration was the allegation of fraud on the part of the defence in the
defence of the 2009 accident. The circumstances of that accident which involved
a hit and run driver were included in the testimony of the plaintiff and no
explanation was provided by the defence to support this most serious of
allegations which subsequently was abandoned by the defence.
[28]
In these circumstances, it is appropriate that the plaintiff be awarded
costs of the action for damages arising from the 2009 action. Such allegations
should never be made without serious consideration by the accuser of the
ability to be able to prove the allegations. In this case, it would appear as
though the allegations could never have been substantiated and as a result, it is
a factor in favour of the plaintiff in considering costs. The problem that
follows is how to reflect this conduct on the part of ICBC in the award of
costs.
[29]
I have come to the conclusion that this factor, i.e. the unproven and abandoned
allegation of fraud and the third factor enumerated under Rule 9-1(6), i.e. the
relative financial circumstances of the parties should be reflected in the
award of costs with a 25% reduction in any amount of costs otherwise payable to
the defendants.
[30]
Accordingly, the plaintiff is entitled to her full costs on Scale B in
all three actions to August 14, 2014.
[31]
Considering the options available to a judge under R. 9-1(5), the
factors which may be considered under R. 9-1(6) and all other factors where an
offer has been made, I award 75% of one set of costs on Scale B to the defence in
respect of all steps taken after delivery of the offer of settlement of August
14, 2014 as contemplated under R. 9-1(5)(d).
Jenkins J.