IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20160420

Docket: M114205

Registry:
Vancouver

Between:

Genevieve Lanz

Plaintiff

And

Silver
Lady Limousine Service Ltd., Pacific Harmony Logistics Inc.
doing business as Pacific Harmony Limousines, Kyle Benzies, Kenneth Freier,
Peter Szirbek and Leonid Y. Markelov

Defendants

Docket: M114207

Registry:
Vancouver

Between:

Genevieve Lanz

Plaintiff

And

Syed
Mobin Ulhaq

Defendants

Before:
The Honourable Madam Justice Sharma

Reasons for Judgment re Costs

[1]            
Judgment in this personal injury case was delivered by the jury on December 3,
2015. The plaintiff’s claims were dismissed. Counsel was invited to set a
hearing down to address costs, and that hearing took place on March 3, 2016.

[2]            
The plaintiff accepts that the defendants are entitled to an award of
costs because they succeeded in the law suit. However, the defendants seek an
award of double costs from September 25, 2015 based on an offer to settle they
made to the plaintiff that she rejected.

[3]            
This case was about two accidents: the first took place December 24,
2009 and the second March 13, 2010. Liability was denied in both. With regard
to the first accident, the plaintiff alleged she was injured when the “party
bus” (a type of limousine that is more like a van such that passengers have
room to stand and the seating is arranged in a “u” shape on the exterior walls)
in which she was a passenger suddenly slammed on its brakes causing her to be
thrown into a dividing wall between the passenger compartment and driver’s
unit, breaking her collarbone. The second accident was a collision between her
and the defendant Syed Mobin Ulhaq’s vehicle at an intersection close to her
home.

[4]            
The jury notice was filed by the defendants. The facts relevant to the
costs issues include these:

a.     The
plaintiff made an offer to settle both actions on July 17, 2014 for $100,000
plus costs and disbursements.

b.     Over
a year later, on September 24, 2015, the defendants countered with an offer of $50,000
but only 50% of costs and disbursements up to September 2015, after which time
the defendants would be entitled to reasonable disbursements and costs.

c.     The
plaintiff rejected the $50,000 offer but countered on October 27, 2015 with an
offer of $65,000 plus costs and disbursements to the date of the offer, and
double costs thereafter.

d.     The
defendants next offered $70,000 inclusive of costs and disbursements. This
offer was rejected. The defendants then offered $80,000 of “new money” which
was similarly rejected.

e.     The
plaintiff then delivered an offer to settle for $117,000 of new money,
including costs. The defendants did not accept this.

[5]            
Rule 9-1 governs costs and at issue are ss. 5 and 6. The law
regarding double costs is well settled. The leading case is Hartshorne v.
Hartshorne, 2011 BCCA 29, which lists at para. 27 factors to
consider when determining the reasonability of a litigant’s decision to reject
a settlement offer before trial. Those factors are the timing of the offer,
whether it had some relationship to the claim as opposed to being merely a
“nuisance offer”, whether it could be easily evaluated, and whether some
rationale for the offer was provided. The timing of the offer is not at issue
here.

[6]            
Also relevant are the following comments of Justice Adair in Currie
v. McKinnon, 2012 BCSC 1165 at para 20: “[w]hile the purpose of the Rule is
to encourage reasonable settlements, parties should not be unduly deterred from
bringing meritorious, but uncertain, claims because of the fear of a punishing
costs order.”

[7]            
In my view, an award of double costs is not justified in this case. The
defendants suggest certain factual issues known to the plaintiff prior to trial
ought to have made her appreciate the weaknesses of her case. In that context
the defendants say their settlement offer was reasonable and should have been
accepted.

[8]            
The defendants assert the plaintiff was a “poor historian” because she
was unable to identify the driver of the bus on which she fell. I reject that
assertion. The passengers’ entrance on the bus was completely separate from the
driver’s compartment, unlike on a city bus where you enter and must either pay
or show a pass to the driver as soon as you board. The buses were being used to
transport a large group of people to a party downtown. The passengers, whether
they knew each other or not, were all going to the same event which was a
celebration (on Christmas Eve) of someone’s birthday, and therefore it is
reasonable to assume they would be socializing. There was no indication
whatsoever that the bus driver approached the plaintiff at any time.

[9]            
Furthermore, the defendants brought an action for non‑suit during
the trial based on this “failure to identify” the driver, and they did not
succeed. That gives credence to the plaintiff’s view that her case had merit
and was worth pursuing: Brooks-Martin v. Martin, 2011 BCSC 497 at para
36.

[10]        
The defendants say the consumption of alcohol by the plaintiff and other
passengers should have alerted the plaintiff that her case was weak on the
basis that the witnesses called on behalf of the plaintiff had “varying
descriptions” about the atmosphere on the bus prior to the incident (including
the number of seats available, and the manner of driving). That is a fair
comment on the evidence, but it was also true that every witness (including the
passenger who testified on behalf of the defendants) agreed the bus “slammed”
on its brakes just before the plaintiff fell. Moreover, it would have strained
credibility if all the plaintiff’s witnesses had very similar or identical
descriptions of things peripheral to the main incident because that would have
been suggestive of collusion. They did agree on the critical events: the brakes
slammed and the plaintiff fell.

[11]        
The defendants also point to the plaintiff’s denial that she was
intoxicated, which they say was contradicted by three of her friends who said
she was “quite drunk”. That was not the evidence at trial; one witness
testified the plaintiff was “drunk”. There were more witnesses who, under
cross-examination, denied the plaintiff was “drunk”. Also, it is not clear to
me why the fact that participants were drinking alcohol, or may have been
drunk, is necessarily inconsistent with the plaintiff being able to prove the
bus slammed its brakes unexpectedly and she was injured as a result.

[12]        
The defendants point out there was evidence that there were enough seats
available on the bus and the plaintiff could have been seated instead of
standing when the bus was in motion. Again, that is a fact that may have
established contributory negligence, but in my view that did not impair the
strength of her case for liability to the degree the defendants suggest.
Everyone at trial accepted these vehicles were “party buses”. They had dancing
poles in the vehicles and the company provided music and flashing lights; there
were no seat belts. They provide a convenient way to safely transport people and
avoid the likelihood of drunk driving. In that context, the plaintiff cannot be
faulted for believing the fact that she was standing would not have a
dramatically negative impact on her case.

[13]        
The defendants also suggest the plaintiff’s version of the slamming of
brakes and her falling was contradicted by two of the drivers of buses that
evening. That is not accurate because one of the drivers had no memory of that
evening. That is not a contradiction; it is a lack of confirmation. Moreover,
all lay witnesses who were on the same bus as the plaintiff testified that it
unexpectedly slammed its brakes and she fell.

[14]        
The defendants’ position on these issues is summarized as follows:

In light of this marked
discrepancy in the evidence, the Plaintiff knew or ought to have known that
there was a chance that the jurors would reject her evidence in favour of the
evidence of the Defendants, who were professional bus drivers at the time of
the Party Bus Incident (in contrast with the Plaintiff and her cohorts, who had
been consuming alcohol throughout the evening).

[15]        
I agree there were factors that presented challenges for the plaintiff’s
case, but remembering one does not take a “hindsight” view of the evidence. I
disagree with the defendants that any of the factual issues summarized above
amounted to such marked discrepancies. This is consistent with Justice Wilson’s
comments in Sartori v. Gates, 2011 BCSC 419 at para. 60:

The first general principles for consideration in this case
are found in R. 9‑1(5) and (6). The defendant says his offer ought
reasonably to have been accepted. He contends the offer was not accepted because
the plaintiff viewed his case as much stronger than did the jury. I do not
think that the jury award is relevant at this point in the analysis. The
question is, what information did the plaintiff have available to him on the
day before the trial commenced.

[16]        
As noted by Justice McEwan in Fan (Guardian ad litum of) v. Chana,
2009 BCSC 1497 at para. 19, costs should not be “a penalty for failing to
guess the outcome” and courts ought to grant leeway to plaintiffs that hold
“honest but, ultimately, mistaken views of their claims”. Similar comments are
found in Giles v. Westminster Savings and Credit Union, 2010 BCCA 282 at
paras. 88-89, Tapestry Realty Ltd. v. Mangat, 2011 BCSC 1415 at para. 31,
Aujla v. Kaila, 2011 BCSC 466 at paras. 10-14, and Wafler v.
Trinh, 2012 BCSC 1708 at paras. 34-35.

[17]        
The defendant, Mr. Ulhaq, says the plaintiff “knew or ought to have
known that there was a chance that the jurors might reject her version of
events in the absence of any independent or objective supporting evidence.”
This is nothing more than confirmation that litigation is uncertain and the
comment applies equally to the defendant. Further, with regard to this
defendant, the plaintiff had the advantage of his discovery evidence that, in
my view, gave the plaintiff reasonable grounds to believe the trier of fact
might reject Mr. Ulhaq’s evidence in its entirety. The plaintiff had
opportunity to observe Mr. Ulhaq’s demeanour during discovery which
suggested a combative and argumentative tone; this was certainly his demeanour
on the witness stand at trial. With respect, it is my view that the day prior
to trial, it was the defendant who ought to have considered that his case was
very weak based on the fact that there was no objective evidence, and the
credibility and demeanour of the witnesses would feature large in the outcome.
Based on the discovery evidence, Mr. Ulhaq’s credibility was compromised.
The fact that the jury did not see the case as the plaintiff did is not
relevant to this assessment; to consider it would be to engage in impermissible
hindsight analysis.

[18]        
The defendants refer to cases in which even so called “nominal offers”
were found to be ones the plaintiffs ought to have accepted, leading to an
award of double costs. I did not understand the defendants to agree their offer
was nominal. They were relying on these cases to show even nominal ones could
provide grounds for awards of double costs. In Ward v. Klaus, 2012 BCSC
99 at para. 28, Justice Goepel relied on a passage from Kurylo v. Rai,
2006 BCCA 176 in which a nominal offer was found to be one the plaintiff ought
to have accepted. Similarly, at para. 39, Justice Goepel noted that in MacKinlay
v. MacKinlay Estate, 2008 BCSC 1570, a nominal offer was found to be “one
of the few tools in the arsenal of a defendant of relatively modest means which
might exert pressure on a plaintiff pursuing an unmeritorious claim.” I have
already indicated why, in my view, the plaintiff’s claim had merit. There was
no evidence to suggest the defendants were of modest means.

[19]        
In McCaffrey v. Kang, 2014 BCSC 2294 at para. 23, the court noted
the reasonability of the nominal offer specifically because the defendant
offered to waive costs and disbursements and that “liability was at best, an
uphill struggle for the plaintiff” early on in the litigation. Those comments
distinguish that case from this one.

[20]        
This brings me to the final point. The plaintiff submits that the
defendants’ offer of only 50% of costs was unusual and amounted to a nuisance
offer once the extensive disbursements were taken into account. She says that
if the defendants wanted to test the reasonableness of the plaintiff’s costs,
taxation could be done following trial.

[21]        
Counsel for the defendants said, in her experience, such offers were not
necessarily unusual. I have no reason to doubt counsel’s word but with respect,
that has no bearing on whether the offers in this case were reasonable or not.
The only rationale offered by the defendants as to offering only 50% of costs
was that it was their right based on the assessment of the strength of the
plaintiff’s case.

[22]        
The defendants first offered $50,000 plus only 50% of costs; their last
offer was $80,000 “new money” inclusive of costs and disbursements. In my view,
there is a legitimate cause for concern when a defendant’s offer does not
include costs and disbursements in a personal injury case where liability and
damages are at issue. It could be seen as a tactic discouraging the plaintiff
from gathering evidence to substantiate her claim in the first place.
Plaintiffs carry the evidentiary burden to prove their case and they are
obliged to bring forward expert medical evidence. In this case, the defendant’s
offer was made more than a year after the plaintiff’s original offer, when
presumably significant costs may already have been incurred with no indication
from the defendants that settlement was a possibility.

[23]        
In the context of this case, I do not find the defendants’ offers to be
ones the plaintiff ought to have accepted because they did not include costs and
disbursements as discrete items. I see nothing about this case that justifies
penalizing the plaintiff for failing to correctly guess the jury would not
accept her claims. I conclude that awarding double costs amount to imposing a
heavy penalty on a plaintiff that was forced to endure the unpredictability of
a jury trial. I find the day before trial, she had reasonable basis to pursue
her case at trial. The defendants’ offers were devoid of discrete recognition
of costs and, in my view, that was a disincentive to settle.

[24]        
The defendants’ application for double costs is dismissed. The plaintiff
is entitled to the costs of this application to be set‑off against the
defendants’ single award of costs of trial.

“Sharma
J.”