IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20160408

Docket: M113625

Registry:
Vancouver

Between:

Eva Sebaa

Plaintiff

And

Yita Eileen Ricci

Defendant

Before:
The Honourable Mr. Justice N. Brown

Reasons for Judgment on Costs

[1]            
The plaintiff seeks an order pursuant to Supreme Court Civil Rule
9-1(6), B.C. Reg. 168/2009 for double costs; either from March 3, 2015, the
date on which the plaintiff made a $495,000 settlement offer, or from March 9,
2015, when the plaintiff made a $345,000 settlement offer.

[2]            
The action arose out of a motor vehicle accident on December 30, 2010. A
liability trial on June 16-20, 2014 found the defendant, Yita Eileen Ricci,
100% responsible for the accident. Earlier, on February 17, 2015, the plaintiff
filed a notice of discontinuance against the other defendant, her husband, Ehab
Al-Tamimi.

[3]            
On March 3, 2015, the plaintiff sent the defendant a settlement offer
for $495,000. This offer had been preceded by a nine-page letter, dated
February 17, 2015, that quantified the plaintiff’s damages at over $1 million,
and gave a rationale for that amount.

[4]            
On March 9, 2015, six days later, the plaintiff sent a second offer for
$345,000, remaining open until the end of business on March 13, 2015.

[5]            
The defendant then presented their offer to settle on March 6, 2015, for
$208,500, remaining open until the close of business on March 13, 2015.

[6]            
As neither of the offers were accepted, an eight-day trial proceeded on March
16, 2015. On August 25, 2015, I awarded the plaintiff a gross amount of $541,585,
reduced to $509,780.88, the net amount after TTD benefits were deducted.

[7]            
Rule 9-9 of the Supreme Court Civil Rules governs costs where
formal offers to settle have been made. It grants the court broad discretion
when determining the cost consequences of settlement orders: Maras v.
Seemore Entertainment Ltd., 2014 BCSC 1842 at para. 31.

[8]            
As just noted, the plaintiff’s initial offer was withdrawn and
substituted by a second offer. An initial offer is a relevant consideration
under Rule 37B of the Rules of Court at that time, in effect then, now
Rule 9-1 of the Supreme Court Civil Rules. In ICBC v. Patko, 2009
BCSC 578 at paras. 34 – 36, the court concluded:

[34]      The first question is whether I am limited to
considering the second offer to settle, given that the first was revoked a year
after it was made.

[35]      In my view, there is nothing in Rule 37B that would
place that limitation on my discretion. Notwithstanding the evolution of the
treatment of offers to settle in the Rules, it is clear that one
of the principal purposes of Rule 37B remains the same as that noted of the
former Rule 37 by Cumming J.A. in Skidmore v. Blackmore (1995), 2
B.C.L.R. (3d) 201, 122 D.L.R. (4th) 330 (C.A.):

…to encourage conduct that reduces
the duration and expense of litigation, and to discourage conduct that has the
opposite effect.

[36]      Both offers constitute an
"offer to settle" within the meaning of Rule 37B(1)(a). Although the
first offer was indeed revoked, it was outstanding for a full year. The real
question is whether, notwithstanding its eventual withdrawal, it was an offer
that ought reasonably to have been accepted while it remained open. To treat it
this way is, in my view, consistent with the object described by Cumming J.A.
in Skidmore.

[9]            
Rule 9-1 encourages early settlements, rewards a party making reasonable
offers, and penalizes the party who declines to accept a reasonable settlement
offer: Hartshorne v. Hartshorne, 2011 BCCA 29, at para. 25. A
further consideration is for a double cost award where a party’s acceptance of
a settlement offer would save significant amounts for either a party or the
court: LeFler v. Anderson, 2008 BCSC 1563, at para. 18.

[10]        
Rule 9-1(1) to (6) state as follows:

Definition

(1) In this rule, "offer to settle" means

(a) an offer to settle made and
delivered before July 2, 2008 under Rule 37 of the former Supreme Court Rules,
as that rule read on the date of the offer to settle, and in relation to which
no order was made under that rule,

(b) an offer of settlement made and
delivered before July 2, 2008 under Rule 37A of the former Supreme Court Rules,
as that rule read on the date of the offer of settlement, and in relation to
which no order was made under that rule, or

(c) an offer to settle made after
July 1, 2008 under Rule 37B of the former Supreme Court Rules, as that rule
read on the date of the offer to settle, or made under this rule, that

(i) is made in writing by a party
to a proceeding,

(ii) has been served on all parties
of record, and

(iii) contains the following
sentence: "The …………[party(ies)]…………, …………[name(s)
of party(ies)]…………, reserve(s) 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 this proceeding."

Offer not to be disclosed

(2) The fact that an offer to settle has been made must not
be disclosed to the court or jury, or set out in any document used in the
proceeding, until all issues in the proceeding, other than costs, have been
determined.

Offer not an admission

(3) An offer to settle is not an admission.

Offer may be considered in relation to costs

(4) The court may consider an offer to settle when exercising
the court’s discretion in relation to costs.

Cost options

(5) In a proceeding in which an offer to settle has been
made, the court may do one or more of the following:

(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 defendant’s 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.

[am. B.C. Reg. 119/2010, Sch. A,
s. 21.]

Considerations of court

(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.

[11]        
The Rule’s encouragement of resolving disputes in a cost-efficient and
expeditious manner places a premium on certainty of result which parties can then
consider when they decide whether to make or accept a settlement offer: Evans
v. Jensen, 2011 BCCA 279.

[12]        
The plaintiff submits that examinations for discovery had been
completed, the plaintiff had submitted to independent medical examination
sought by the defendant, and the defendant had in hand documents the plaintiff
intended to rely on. The examinations for discovery took place on January 13,
2012, and lasted one hour and 48 minutes. Although the discovery was purportedly
adjourned generally, on the subject of the plaintiff’s pursuit of In Vitro
Fertilization (“IVF”), the plaintiff maintains the defendant sought no further
examination. The defendant did, however, seek further discovery, but the
plaintiff refused the request.

[13]        
The plaintiff had planned to move to Qatar around the time the
examination for discovery occurred, but various bureaucratic matters slowed the
process and she did not relocate until April 2014, about two years later. The plaintiff
submits, however, that ample time remained for the defendant to continue with
an examination for discovery and to obtain what information counsel thought necessary.
In this regard, the plaintiff stated:

The proximity in time between the
plaintiff’s offers and the time of trial would suggest that the defendants had
an abundance of time to consider the totality of the available evidence and the
applicable law in this matter.

[14]        
As for relatedness of the offers to the plaintiff’s claim, as is usually
the case with personal injury actions, the medical evidence was pivotal,
although not as thoroughly contradictory as the court sees in some cases.
Aspects of some of the plaintiff’s injuries were straightforward; others, such
as the causes of her chronic pain and psychiatric problems, less so. The nature
and extent of the claims were defined and addressed in the reports of seven
experts.

[15]        
As for the relationship between the plaintiff’s offers and the court’s
award of $509,788, net, the plaintiff’s first relevant offer made on March 3,
2015 is $15,000 less than the award. The second offer on March 9, 2015, was
$150,000 less than the first offer and $165,000 less than what the court
awarded at trial.

[16]        
It was evident at trial that the plaintiff was reluctant to proceed to
trial and found the litigation process emotionally trying. She and her husband
had moved to Qatar. Coming back to have the case tried reminded her of what she
had experienced. She was a very private person and resisted discussing personal
matters, even with caregivers. When she returned from Qatar to complete medical
legal examinations for her case, she refused to attend one of the appointments set
up by her own counsel because she found the process too difficult.

Defence position

[17]        
The defendant stressed that the medical legal evidence provided by experts
the defendant had retained did not consist with the plaintiff’s claims. The
defendant pointed out that Dr. Horlick, an orthopaedic surgeon who
examined the plaintiff on December 20, 2011, could find no significant
structural abnormality and that it was unclear why the plaintiff continued to
experience such significant ongoing discomfort. He thought there was
significant room for improvement and that the plaintiff would not see any
long-term progressive impairment or major disabilities. Counsel also pointed
out that Dr. Horlick thought the plaintiff’s potential to re-enter the
workforce as an electrical technician was high.

[18]        
At the examinations for discovery on January 13, 2012, the defendant
contrasted the plaintiff’s descriptions with her testimony at trial; having
testified at examinations for discovery injuries of a fractured finger and soft
tissue injuries that were improving, PTSD, anxiety, and depression.

[19]        
The defendant pointed out that when the plaintiff attended a psychiatric
independent medical examination on January 31, 2012, one that the plaintiff at
first refused to attend, eventually necessitating a court order applied for
January 27, 2012, Dr. Tomita had opined that the plaintiff still required
psychiatric treatment and psychological counselling, her prognosis was fair,
and she was capable of part-time work. Counsel pointed out, as well, that the
plaintiff’s family physician, Dr. Mitha, noted on October 25, 2012, that
the plaintiff looked better, and was looking for work.

[20]        
In reply, however, counsel for the plaintiff pointed to Dr. Tomita’s
opinion, based on his February 12, 2012 assessment:

…The other factor is a decrease
in her work capacity related to her psychiatric injuries and symptoms including
low energy, low motivation, negative thinking, anxiety and fatigue, which would
make both searching for work and starting work difficult. These symptoms might
not preclude part-time work but would very likely prevent a return to any type
of full-time work at present.

[21]        
With respect to prognosis, Dr. Tomita stated:

Increasing the likelihood of a
worse prognosis is the fact that she has remained asymptomatic since the
accident now over two years and by definition has chronic depressive symptoms.
The longer such symptoms are present, the less likely for response to treatment
will occur and, therefore, the worse the prognosis will be. I would be
concerned if [the plaintiff] relocated to Qatar and decided to stop all mental
health treatment. Although there remains a small possibility of spontaneous
recovery, the more likely course will be continuation of psychiatric symptoms
without further treatment.

[22]        
The plaintiff further submitted in reply that the defendant had known
since receipt of Dr. Tomita’s report in early 2012 that the plaintiff had
significant issues with pain and psychiatric issues arising from the accident;
and that her capacity to work was severely limited as a result. The plaintiff
submits that the defendant cannot reasonably contend she did not understand the
essential nature of the plaintiff’s injuries.

[23]        
The defendant’s position, however, is that the plaintiff’s own testimony
at examination for discovery and some of the reports stated by her own treating
physicians, did not consist with the nature and extent of the injuries she alleged
at trial.

[24]        
The defendant further pointed out the plaintiff did return to work
before trial, as noted in the reasons for judgment; that in fall 2014, plaintiff’s
counsel had advised he was uncertain about the plaintiff’s resident status,
whether she had returned to Canada for a short period of time, or had simply
not yet left for Qatar.

[25]        
Defence counsel also pointed to the plaintiff’s settlement proposal
dated February 17, 2015, which stated the plaintiff had been “able to return to
the workforce with Verathon.” (The plaintiff’s unsuccessful return to work was
discussed in the reasons for judgment.)

[26]        
With respect to document production, which the plaintiff submitted had
been completed and no further discovery requested, the defendant pointed to
eight significant requests and follow-ups for production of significant
documents between February 4, 2014 and March 4, 2015. It was not until On
February 24, 2015, one month before trial, that the plaintiff provided the
defendant with her 2013 income tax returns and Verathon’s employment file (This
was the last place she had worked in Canada). This was followed by further
requests by the defendant for clinical records and the plaintiff’s 2014 T4.

[27]        
The defendant also submits that the plaintiff’s own reports were less
dire than the plaintiff’s testimony. The defendant submitted that the apparent
deterioration in the plaintiff’s condition was not evident from the medical
reports presented, not mentioning, for example, that the plaintiff had become
socially isolated.

[28]        
Further, the defendant submits it did in fact request a further
examination for discovery. The defendant points out that on December 9, 2014,
about one and one-half months after the defendant had filed a Rule 1-1
settlement offer for $107,000 new money, defence counsel had contacted the
office of plaintiff’s counsel to request a further examination for discovery of
the plaintiff, asking when the plaintiff would return to Canada for her trial,
which was set to commence on March 16, 2015.

[29]        
On January 7, 2015, however, the plaintiff’s office advised that
plaintiff’s counsel opposed any further requests for discovery. Then the
plaintiff delivered its $495,000 settlement offer on March 3, 2015, open to
acceptance until the end of business on March 12, 2015. It was then that the
defendant countered with its offer of $208,500, based on the evidence the
defendant said she had at that point. It was then, as noted earlier, that the
plaintiff filed its March 9, 2015 settlement offer of $345,000.

[30]        
The defendant submitted:

The evidence the Plaintiff gave
at trial was substantially different from the evidence the Defendant had access
to the date of trial from the independent medical examinations and the
Plaintiff’s Examination for Discovery. Specifically the Defendant was unaware
how socially isolated the Plaintiff was. Even the Plaintiff’s reports did not
suggest the Plaintiff was as isolated or as impaired. By this time the
Plaintiff’s settlement offer had expired.

[31]        
This distils the essence of the defendant’s position.

[32]        
In Wafler v. Trinh, 2014 BCCA 95 at para. 65, the court
stated that if a party’s degree of confidence in evidence supporting its theory
is reasonable, it “should not be unduly penalized when the trier of fact
ultimately accepts evidence to the contrary.” Counsel also stressed that the
reasonableness of a party’s decision not to accept an offer to settle must
relate not to the award ultimately made, but rather to the circumstances
existing when the offer was open to acceptance: Bailey v. Jang, 2008
BCSC 1372, at para. 24. Further, those circumstances are considered from the
perspective of a party in receipt of the offer (para. 36).

[33]        
In Fan (Guardian ad litem of) v. Chana, 2009 BCSC 1497 at para. 19,
the court noted costs were not intended as “a penalty for having failed to
guess the outcome” and that “litigants holding honest but, ultimately, mistaken
views of their claims” are entitled to “some leeway”.

[34]        
Also referred to was Ram v. Rai, 2012 BCSC 1718. In that case,
the defendant had been misled about the strength of the plaintiff’s medical
legal claim by reports served, which the court found effectively made the
defendant’s failure to accept the plaintiff’s offer to settle more reasonable
than otherwise would have been the case (para. 74).

[35]        
The defendant submits it was similarly misinformed about the strength of
the plaintiff’s claim because the defendant had access only to the early
examination for discovery and independent medical legal examinations arranged
during the initial stages of the litigation. The defendant submitted the
plaintiff’s alleged imminent departure to Qatar also inhibited its
preparations. The defendant submits its confidence in the evidence that
supported the defendant’s assessment of the claim was reasonable based on the
limited information available to it at the time it had received the offers.

[36]        
The defendant submits it was caught by surprise by the substantially
different evidence the plaintiff gave at trial; and that the plaintiff’s
refusal to allow the defendant to continue examination for discovery left it
misinformed regarding the full nature of and extent of the plaintiff’s claim.

[37]        
The defendant also stressed, as it did during the trial, that there was
a gap in the evidence relating to the plaintiff’s medical treatment after
October 20, 2012, again leaving it in no position to understand the severity of
the plaintiff’s condition. The defendant notes as well that the plaintiff’s
move to Qatar would affect her ability to work, which in turn would factor in
how the defendant would access the case. In summary, the defendant submits:

In the case at bar, the
combination of factors including Plaintiff’s alleged impending move to Qatar,
the Plaintiff’s refusal to allow to allow the Defendant a continued Examination
for discovery, the paucity of clinical records as well as the competing expert
evidence made quantification difficult. The Defendant submits she was unable to
assess the reasonableness of the Plaintiff’s offer, especially based on the
limited information available to the Defendant up to the date of the trial.
Hence, double costs should be denied to the Plaintiff although the trial award
exceeded her offer to settle.

[38]        
Considering the evidence as a whole, I can see the defendant’s capacity
to assess the reasonableness of the plaintiff’s settlement offers was compromised
to some extent by the defendant’s lack of opportunity to examine the plaintiff
further before trial.

[39]        
The plaintiff took the position that the Rules contemplated one examination
for discovery and 84 days before the trial, when the plaintiff’s reports were
served, the defendant was fully aware of her evidence. The plaintiff submitted
as well that the trial did not start until March 16, 2015, and that the
defendant had in hand the plaintiff’s quantification of damages over $1 million
on February 17, 2015 and a rationale, roughly one month before trial. The
plaintiff further submitted that after the defendant had reviewed the
plaintiff’s expert’s reports and her settlement demand, the defendant had every
right under the Rules to apply for further discovery if she thought one was
necessary.

[40]        
However, I note the defendant sought further examination from the
plaintiff and counsel refused it.

[41]        
After the refusal, the defendant could have applied for further
examination for discovery. It is not clear if or when the plaintiff would be available
in a timely way to allow the defendant time to reconsider its position and the
medical reports in light of her discovery testimony and the plaintiff’s
settlement offer information. A settlement offer, however well drafted and
detailed, is not a substitute for evidence, but the offer is expansive and
informative, and is at least instructive on the plaintiff’s theory of the case
and the evidence supporting it. In that respect, the defendant was not caught
off guard.

[42]        
Further, Dr. Tomita’s much earlier report did signal significant
litigation risks for the defendant, particularly with respect to the
plaintiff’s loss of future earning capacity. He stated, even then, that the
plaintiff’s injuries he had identified “might not preclude part-time work
but would very likely prevent a return to any type of full-time work at
present.”

[43]        
While there may have been gaps in the plaintiff’s treatments, the
reasons for judgment [indexed at 2015 BCSC 1492] do note, for example: “the
plaintiff’s psychological injuries are fully detailed in the medical reports
[and] as is well documented in the medical reports since the accident, her mood
has been low, her social life zero, with a strong resistance to socializing or
generally being around anyone” (para. 34.) Further, at para 60, I noted
the comprehensive nature of Dr. Adrian’s physiatrist report and how it
conformed with other accepted evidence on the plaintiff’s physical injuries.

[44]        
The medical reports were available to the defendant at least 84 days
before trial.

[45]        
What I find most weakens the plaintiff’s position on the question of
costs, is her refusal to attend further discovery when the defendant’s request
was reasonably made. But this is not enough to dislodge my conclusion,
considering all the evidence, that the plaintiff’s March 9, 2015 offer of
$345,000 was reasonably capable of acceptance, given the evidence available to
the defendant and the apparent litigation risks. I note that irrespective of
the perceived shortcomings in the evidence available to the defendant, counsel defended
the defendant’s position well at trial, excavating matters favourable to the
defendant’s position. This significantly influenced the amount of damages
awarded.

[46]        
Weighing these considerations, I find the plaintiff is entitled to
double costs for eight days of trial and costs at Scale “B” for matters before
March 16, 2015.

“N.
Brown J.”