IN
THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100202

Docket:
M063770

Registry: Vancouver

Between:

Matthew Robert Joseph McLaren

Plaintiff

And:

Jacob John Rice, Michael John Rice,
and Hilltop Garden Farm Ltd.

Defendants

Before: The Honourable Mr. Justice Brooke

Oral Reasons for Judgment

In
Chambers

[1]            
THE COURT:  The plaintiff in this action seeks double
costs from the commencement of trial on November 24, 2008, and his taxable
costs from the commencement of the action to that date.

[2]            
The issues of liability
and quantum had been separated with liability tried first commencing November 21,
2008. When the trial was called, an issue arose as to whether the seatbelt
defence would form part of the liability trial or, in the circumstances, be
heard at some later date, perhaps in association with the assessment of
damages.

[3]            
The defendant relied
upon an expert opinion that was delivered to the plaintiff at the commencement
of trial to which the plaintiff had not obtained an expert opinion in answer. In
the result, I ordered that the trial of liability proceed with the seatbelt
defence issue to be tried later in December or January as the circumstances
required, and I seized myself of both aspects of the trial, that is, liability and
the assessment of damages.

[4]            
Judgment was given on liability
on October 26, 2009, in favour of the plaintiff binding the defendants jointly
and severally liable and awarding costs at Scale B. The plaintiff now seeks
double costs pursuant to Rule 37B and relies upon the offer to settle dated
November 14, 2008, which was delivered to counsel for the defendants the same
day.

[5]            
The offer, addressed to
the defendants and the defendants’ solicitors, says this (as read in):

The plaintiff, Matthew R.J. McLaren, offers
to settle the liability trial in this proceeding on the following terms: that
the defendant is 99 percent responsible for the motor vehicle accident of
February 26, 2005, in which the plaintiff was a passenger in the vehicle owned
and operated by the defendants and costs in accordance with Rule 37B.

The plaintiff
reserves the right to bring this offer to the attention of the court or
consideration in relation to costs after the court has rendered judgment on all
other issues in this proceeding relating to liability for the accident.

[6]            
And that is the extent of the offer to settle
which is prefaced with the style of cause and signed by counsel for the
plaintiff.

[7]            
Despite the prescribed
formulation in Rule 37B, 1(c)(3) being added to with the words "relating
to liability in this proceeding", I am satisfied that the plaintiff has
complied with the definition of offer to settle contained in Rule 37B(1) and
the issue is properly before me. On the trial of the quantum issue, it seems to
me that Rule 37B may again be invoked. The two aspects of the trial are
separate and discrete.

[8]            
The plaintiff says that
the court is given a discretion to award double costs pursuant to Rule
37B(5)(b), and having regard to the considerations set out in Rule 37(B)(6),
such an order should be made. The defendant says firstly that the offer is
ambiguous in that the offer refers to "the defendant" in the singular
being 99 percent responsible for the motor vehicle accident. I find there
is no merit to that submission; when the whole of the offer is set out, it
clearly distinguishes between the defendant driver and the defendant owners. The
defendants also say that the offer was not one that "ought reasonably to
have been accepted, either on the date that the offer to settle was delivered
or on any later date".

[9]            
The defendants rely on
the fact that the plaintiff had not delivered his rebuttal report to the
defendants’ expert’s report on the seatbelt defence raised by the defendants
until after the trial commenced. However, that submission, it seems to me,
relies upon the fact that it was only because the defendants’ disclosure of
their own report was not delivered until November 24, 2008, the first day of
trial, despite that expert report being dated some two months earlier on
September 24, 2008. To give effect to the defendants’ submission would, it
seems to me, reward the defendants for their own failure to deliver their expert
report in compliance with Rule 40A. The defendants cannot now say that
they did not have a reasonable opportunity to consider the offer because they
did not have the defendants’ expert report on the seatbelt defence because they
did not have that report as a result of their own default.

[10]        
In the result, the
plaintiff will have costs at Scale B until November 24, 2008, pursuant and — rather
to ‑‑ until November 24, 2008, and thereafter double costs with
disbursements throughout in the amount actually incurred.

Brooke J.