IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151214

Docket: M104546

Registry:
Vancouver

Between:

Bingchun Zhao

Plaintiff

And

Qiang Yu

Defendant

Before:
The Honourable Madam Justice Baker

Reasons for Judgment

(Re: Costs)

HISTORY OF THIS APPLICATION

[1]            
The trial of this personal injury action commenced on October 21, 2013
and continued for six days.  On October 10, 2014, I issued Reasons for
Judgment, (2014 BCSC 1915).  I awarded the plaintiff, Mr. Zhao, $12,000 for
special damages, $9,700 for the cost of future care, and $70,000 for
non-pecuniary losses, for a total award of $91,700.

[2]            
In paragraph 131 of the Reasons for Judgment, I stated:

I am not aware of any reason why
the plaintiff should not have his costs, to be assessed on Scale B.  If there
are factors that should be brought to the Court’s attention, such as offers of
settlement, counsel may either make submissions in writing about costs, or
arrange to appear for an oral hearing.  Otherwise the order shall be that the
plaintiff has his costs, to be assessed on Scale B.

[3]            
The parties elected to file written submissions.

POSITIONS OF THE PARTIES

[4]            
The Defendant seeks an order that the Defendant be awarded its costs and
disbursements from and after October 4, 2013, the date on which the Defendant
made an offer to the Plaintiff to settle the action for a payment of $93,500 to
the Plaintiff.  In the alternative, the Defendant seeks an order that the
Plaintiff be awarded costs to the date of the offer; and that each party bear
his own costs thereafter.  The Plaintiff seeks an order that he be awarded
costs assessed at $11,000, as contemplated in Rule 15-1(15) for a three day
trial; plus $1,500 for each of the three additional days of trial, for a total
costs award of $15,500, plus reasonable disbursements to be agreed or assessed.

[5]            
In submitting that an additional $1,500 should be awarded for each day of
trial in excess of three, the Plaintiff relies on the reasoning in Saopaseuth
v. Phavongkham, 2015 BCSC 45 and Peacock v. Battel, 2013 BCSC 1902.

FACTS

[6]            
On October 4, 2013, the Defendant delivered an Offer to Settle, offering
to pay the Plaintiff $93,500 in satisfaction of his claims.  The Plaintiff
delivered an Offer to Settle on October 12, 2013, offering to accept $200,000. 
As stated earlier in these Reasons, the Plaintiff was ultimately awarded
damages totalling $91,700 – a sum that was $1,800 less than the amount the
Defendant had offered.

[7]            
Subrule 9-1(5) of the Rules of Court sets out the options the
Court may exercise in the event an offer to settle has been made.  Subrule
9-1(6) sets out some of the matters the Court may consider when making an order
under subrule 9-1(5), as follows:

(a)  whether the offer to settle was one that ought
reasonably to have been accepted…;

(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.

[8]            
In their written submissions, the parties have referred to the following
authorities: Warren v. Morgan, 2015 BCSC 1168; Vander Maeden v.
Condon, 2014 BCSC 677; Gonzales v. Voskakis, 2013, BCSC 675; C.P.
v. RBC Life Insurance Company, 2015, BCCA 30; Giles v. Westminster
Savings and Credit Union, 2010 BCCA 282; Loft v. Nat, 2014 BCCA 108;
Peacock v Battel, (cited earlier); Saopaseuth v. Phavongkham,
(cited earlier); and Smith v. Neil, 2015 BCSC 572.  I have read and
considered these authorities.

RELATIVE FINANCIAL CIRCUMSTANCES OF THE PARTIES

[9]            
There is no evidence about the financial circumstances of the
Defendant.  I am aware that the Defendant’s defence was mounted by an insurer. 
So far as I am aware, an award of costs to the Plaintiff will be paid by that
same insurer and I infer that there will be no financial penalty to the
Defendant as a result.  Any loss of safe driving discount or increase in
insurance premiums, if applicable, will likely already have resulted from the
admission of liability and the award of damages.

[10]        
Based on the evidence heard at trial, the Plaintiff is not a wealthy
person.  He supports himself, and contributes to the support of his partner and
her daughter, who has significant disabilities, from his income from
employment.  Denying the Plaintiff his costs; or making an award of costs in
favour of the Defendant would undoubtedly significantly erode the award of
damages; and result in the Plaintiff being under-compensated for the injuries
and losses resulting from the Defendant’s negligence.

RELATIONSHIP BETWEEN THE OFFER AND THE AWARD

[11]        
The offered amount exceeds the amount awarded by only $1,800 – an almost
negligible difference.  The Defendant’s Offer to Settle did not include a
breakdown or allocation of the amount tendered to the various heads of damages,
so it is difficult to know how the Defendant arrived at the quantum of the
Offer.  I would consider the difference between the amount offered and the amount
awarded to be of little significance in arriving at a decision about costs in
the circumstances of this case.

WHETHER THE OFFER OUGHT REASONABLY TO HAVE BEEN ACCEPTED

[12]        
This factor was the primary focus of the parties’ submissions.  The
Defendant submits that the Plaintiff ought to have realized there was a risk
that he would not be found to have suffered a mild traumatic brain injury and
or would not be awarded compensation for impairment of the capacity to earn
income in future.  The Plaintiff submits that it was reasonable for the
Plaintiff, based on Plaintiff’s counsel’s review of the authorities and
assessment of the evidence, to believe, as he did, that he would receive an
award for impairment of his capacity to earn income.

[13]        
While in hindsight the Defendant’s Offer was indeed reasonable, that is
not the test.  Rule  9-1(5) and 9-1(6) were not intended, in my view, to punish
parties merely because the party’s assessment of the value of the claim proves
incorrect, unless that assessment was based on irrelevant considerations; a
clearly inadequate review of the available evidence and applicable authorities,
or was, in view of the facts known at the time, unreasonable.

[14]        
Here, the parties differed, as did some of the expert witnesses, about
the Plaintiff’s prognosis; and the extent to which the injuries resulting from
the accident, would affect his capacity to earn income in future.  While the
Plaintiff did not succeed on this issue, I cannot say it was unreasonable for
him to pursue the claim; or to believe that there was some prospect of success,
even if there was a risk he would not succeed.  I note also the Plaintiff’s
submission, which I consider persuasive, that even a slightly higher award for
special costs or non-pecuniary damages would have resulted in an awarded that
exceeded the Defendant’s Offer.

DECISION

[15]        
Having weighed the relevant factors, I am satisfied that this is a case
in which I should award the Plaintiff the costs of the entire action, including
all steps taken after the date of delivery of the Defendant’s offer,
notwithstanding the Defendant’s Offer.

[16]        
Plaintiff’s counsel has suggested an award based on Rule 14-1 and Rule
15-1(15) to (17).  I consider this to be a reasonable approach in the
circumstances.  Although it will likely, in my view, result in an award of
costs in an amount less than the Plaintiff would recover if costs were assessed
on Scale B, it recognizes that the damages award was less than $100,000 and
will save the parties the cost of an assessment of costs, in the event they
were unable to agree.

[17]        
The Plaintiff shall have his costs of the entire proceeding, assessed at
$15,500, plus disbursements.

“W.G. Baker J.”