IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20101021

Docket: M074429

Registry:
Vancouver

Between:

Nicole
Jayetileke

Plaintiff

And

Carol
Blake

Defendant

Before:
The Honourable Mr. Justice Dley

Reasons for Judgment

[1]            
The plaintiff was awarded damages less than the
defendant’s offer to settle. Nonetheless, the plaintiff seeks costs because the
defendant called an expert witness who had been branded as an advocate in prior
cases, and whose conduct in this trial was deserving of rebuke.

[2]            
In the ordinary course of events, a defendant
who had offered to settle the claim for more than the final judgment would be
entitled to costs incurred after the plaintiff had been provided a reasonable
period of time to consider the tender. The unique factor in this case is the
expert evidence presented on behalf of the defence.

[3]            
At the centre of the controversy is Dr. Davis,
who began his testimony with the following commentary:

THE CLERK: Thank you. Please state your
full name and spell the last name for the record.

A          First name is Hymie,
H-y-m-i-e, and my surname is Davis, D-a-v-i-s.

THE CLERK: Thank you. Please sit down.

A          Thank you.

MR. HERMAN: Thank you. My Lord, Dr.
Davis’ report appears in Exhibit 11, and my friend has kindly acknowledged Dr.
Davis’ qualification to conduct an independent psychiatric evaluation, and I
therefore tender him for the purposes of providing expert opinion on an
independent psychiatric evaluation.

A          Do you have any scotch in
there or is it plain?

THE CLERK: Just water.

A          Thank
you. I’m not used to water without scotch.

Background Facts

[4]            
The plaintiff was the victim of a rear end
collision. In addition to soft tissue injuries, she began to suffer from
vertigo.

[5]            
The plaintiff claimed damages for pain and
suffering, past and future income loss, special expenses and costs of future
care.

[6]            
The defence admitted liability. This trial was
restricted to the assessment of the plaintiff’s losses.

[7]            
The question of whether the symptoms of vertigo
were related to the collision was a central theme of the trial. This was a
particularly contentious issue because the plaintiff had a history of treatment
for dizziness and motion sickness that predated the accident

[8]            
The Insurance Corporation of British Columbia (“ICBC”)
had the plaintiff examined by Dr. Longridge, reputed to be a leading authority
in evaluating dizziness. Dr. Longridge was asked for his opinion as to whether
the plaintiff had suffered an injury, and if so, whether it was related to the
motor vehicle accident. Dr. Longridge was told that the plaintiff had struggled
with motion sickness and vertigo since she was a child.

[9]            
Notwithstanding the plaintiff’s previous
symptoms, Dr. Longridge opined that the vertigo was probably caused by the
collision.

[10]        
During the trial, plaintiff’s counsel uncovered
the fact that the defence had twice sought to have Dr. Longridge change his
opinion.

[11]        
The plaintiff had been examined by a
psychiatrist who concluded that the motor vehicle accident was a significant
factor leading to the onset of depression. The psychiatrist recommended that
the plaintiff be provided with cognitive behavior therapy, which would manage
her depressive symptoms, and might in turn assist in reducing the soft tissue
pain and vertigo. Plaintiff’s counsel sent the report containing the
recommendations to ICBC and asked for funding assistance. He received no reply.

[12]        
On February 3, 2010, the defence made a formal
offer to settle for $122,500. The offer was in accordance with the provisions
of the former Rule 37B, which is now Rule 9-1, Offers to Settle: Supreme Court
Civil Rules, Court Rules Act, B.C. Reg. 168/2009.

[13]        
At the time the offer was made, all of the
medical reports and expert opinions had been exchanged.

[14]        
The trial commenced on April 19, 2010 and lasted
eight days. On May 13, 2010, judgment was granted for $113,095. The award was
$9,405 less than the offer to settle.

Position of the Parties

[15]        
The plaintiff argues that the provisions under
Rule 9 -1 exist not only to indemnify a party pursuant to a successful offer to
settle, but also to deal with conduct at trial. It is the plaintiff’s position
that the defendant’s action in calling Dr. Davis is conduct that should be
addressed under the provisions of Rule 9–1.

[16]        
The plaintiff also argues that it was reasonable
for her to reject the offer and proceed to trial.

[17]        
The defence argues that Rule 9 -1 is designed to
encourage settlement and discourage parties from pursuing protracted
litigation. The defence states that the plaintiff had ample time to consider
the offer and should now suffer the consequences for being awarded lesser damages.

[18]        
In the alternative, the defence argues that if
Dr. Davis required rebuke, then the plaintiff’s costs should cease as of the
date of the settlement offer.

The Law

[19]        
Costs provisions are intended to encourage the
reduction of litigation expense, and to discourage conduct that has the
opposite effect. Costs awards are designed to encourage settlement by
penalizing the party that declines an offer to settle which was better than the
trial result: Bailey v. Jang, 2008 BCSC 1372, 90 B.C.L.R. (4^th)
125 at paras. 15-17.

[20]        
Rule 9-1 provides the Court with a broad
discretion. Costs should penalize an unreasonable litigant without
automatically punishing a party whose view of the case is not shared by the
trial judge. Parties should not be afraid to litigate a meritorious claim ,
simply because they fear a punishing costs award. Nonetheless, an offer to
settle must always be given consideration so as to ensure that this Rule
retains its purpose: Fan (Guardian ad litem of) v. Chana, 2009 BCSC
1497, [2009] B.C.J. No. 2181 at paras. 18-21.

[21]        
The costs consequences require parties to
carefully analyze their cases throughout the litigation process. The “costs
rules should be utilized to have a winnowing function in the litigation
process”: Catalyst Paper Corp. v. Companhia de Navegacao Norsul, 2009
BCCA 16, 307 D.L.R. (4^th) 285 at paras. 13-16.

[22]        
In deciding the issue of costs, Rule 9-1 (6)
provides that the following factors may be considered:

(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.

[23]        
Special costs may be awarded where, in the
proceedings, a party misbehaves in a manner that deserves reproof or rebuke.
Special costs cover a broad range of misconduct categorized as reprehensible,
from which the court disassociates itself: Heppner v. Schmand, 117
B.C.A.C. 314, [1998] B.C.J. No. 2843 at paras. 9-17.

Discussion

[24]        
The plaintiff had a difficult case to prosecute,
as the vertigo that formed the basis of her claim was a hotly contested issue
at trial. The defence expressed serious reservations as to the causation of the
vertigo. Had the plaintiff been unsuccessful in proving that causation, her
award would have been rather modest.

[25]        
While the damages awarded for income loss and
cost of care were significantly less than claimed, that does not mean that they
were advanced without any prospect of success or merit.

[26]        
However, it would be unjust to ignore the
reality that the defendant’s offer to settle was better than the trial result.

[27]        
Rule 9–1 (5) gives the court discretion to award
double costs to the defendant in circumstances where its offer to settle
exceeded the judgment.

[28]        
Taking into account:

a)    the imbalance in the financial positions between the plaintiff
(earning approximately $70,000 per year) and the enormous resources of the ICBC
defence;

b)    the closeness of the offer and the award; and

c)    
the strength of the plaintiff’s claim,

I would not
award double costs to the defendant.

[29]    Rule
9-1(6) gives the court discretion to consider any other appropriate factor in
assessing the award of costs.

[29]        
I take into account the fact that the defence
secured the evidence which linked the plaintiff’s vertigo to the accident – yet
tried to have the expert change his opinion.

[30]        
I am mindful, that this is a tort claim which is
not to be confused with the plaintiff’s rights as an insured. However, the
reality is that the defence was conducted by ICBC and it would be unjust to the
plaintiff to ignore that fact.

[31]        
The plaintiff’s recovery could have been
assisted if ICBC had participated in the provision of cognitive behavior
therapy. Her condition could have improved to a level where the assessment of
her future loss was more positive, had the therapy being addressed in a timely
fashion. Instead, ICBC did not even give the plaintiff the courtesy of a reply
to her psychiatrist’s recommendations.

[32]        
The threat of a punishing costs award may have a
chilling effect on litigants who, like the plaintiff, have meritorious claims.
Costs are meant to assist the courts in controlling the litigation process.
They are not designed to thwart parties seeking redress through the courts.

[33]        
If these were the only factors to consider, I
would have awarded the plaintiff her costs up to the halfway point of the
trial; particularly since the central issue of vertigo causation was decided in
her favour. In recognition of the defendant’s offer to settle, I would have
awarded the defendant the second half of the trial costs.

[34]        
However, after consideration of the role and
conduct of Dr. Davis, I decline to award the defendant any costs.

[35]        
Dr. Davis had a history before the courts where
his evidence was rejected and his objectivity called into question: Grewal
v. Brar et al, 2004 BCSC 1157, [2004] B.C.J. No. 1819; Gosal v. Singh,
2009 BCSC 1471, [2009] B.C.J. No. 2131; Kelly v. Sanmugathas, 2009 BCSC
958, [2009] B.C.J. No. 1413; and Smusz v. Wolfe Chevrolet, 2010 BCSC 82,
[2010] B.C.J. No. 114.

[36]        
A witness may have a poor day in court – that
does not mean the witness was dishonest or forever unreliable. However, Dr.
Davis had displayed an alarming inability to appreciate his role as an expert
and the accompanying privilege to provide opinion evidence.

[37]        
The defence was alive to his propensity to abuse
the role of an expert. His reputation would have been known from the cited
decisions. Plaintiff’s counsel succinctly set out the concerns about Dr. Davis
in a letter dated January 29, 2010, which stated:

1.         Although he may have once
been a qualified expert in psychiatry and able to give opinion evidence in
court, we suggest he no longer is properly qualified to give opinion evidence.
We will suggest that he is no longer aware of his duty to assist the court and
in reality he is an advocate for ICBC. Additionally, we will submit that he has
been so consistently discredited by the courts of this Province that he is
incapable of being qualified as an expert;

2.         His report is replete with
advocacy. The report is an attempt [to] neutralize any material/opinions which
support the plaintiff’s claim rather than providing an objective medical
opinion;

3.         His report contains many
opinions and arguments that are beyond his expertise; and

4.         The
information apparently gleaned from the plaintiff is inaccurate and incomplete
and coloured to advance his position.

[38]        
In spite of the concerns that the Courts have
expressed, the defence nonetheless proffered Dr. Davis as an expert in
opposition to the plaintiff’s complaints of depression and anxiety. My
assessment of Dr. Davis was as follows (oral reasons May 13, 2010):

[43]      Dr. Hymie Davis, a psychiatrist,
examined Ms. Jayetileke on January 12, 2010 at the request of the defence. I
find his evidence to be unreliable. I give it no weight for the following
reasons.

[44]      Dr. Davis was an advocate. He was
argumentative, defensive, non-responsive, and prone to rambling discourses that
were not relevant to the questions posed in cross-examination.

[45]      Dr. Davis was asked to leave the
courtroom so that counsel could argue about questions to be put to him. Dr.
Davis was seen peeking into the courtroom and listening to the discussion. He
was again asked to leave. In spite of these instructions given to him, Dr.
Davis hovered within hearing distance and, on four occasions, stuck his head
into the courtroom to hear what was occurring.

[46]      Dr. Davis conceded that without
his notes, he would not be able to recall the discussion with Ms. Jayetileke.
He relied on his notes to prepare his report.

[47] Dr. Davis had noted that
Ms. Jayetileke awakened once or twice a week and that this was in some measure
related to the accident-related symptoms. He was adamant Ms. Jayetileke had not
said that she awakened once or twice a night. He said that his notes would
reflect what Ms. Jayetileke had told him.

[48]      His notes referred to Ms. Jayetileke awakening once
or twice but did not specify whether that was nightly or weekly. Nonetheless,
Dr. Davis tried to point out other references in his notes that meant a weekly
occurrence. Those references did not strengthen his evidence. They simply
confirmed the unreliability of his testimony.

[49]      Dr. Smith had commented
about how important it was for the history-taking to be done in a setting where
the patient was comfortable and at ease with the interviewer. Dr. Davis’s
demeanour would not lend itself to Ms. Jayetileke being at ease in his presence
so that an effective and accurate history could have been taken. Ms. Jayetileke
was under the impression that Dr. Davis did not take things seriously. I accept
her view of the interview and prefer her evidence to that of Dr. Davis.

[39]        
For a trial to be fair, the Court must allow each
party to put its best case forward. Where a party seeks to advance its position
with reckless abandon seeking only the ultimate goal of victory and using
questionable evidence along the way, that party risks sanctions in the form of
costs penalties. Where the conduct is reprehensible and deserving of reproof
and rebuke, the penalty is special costs. “Costs considerations are meant to
guide counsel and litigants in the choices and strategies they pursue in
litigation”: Karpodinis v. Kantas, 2006 BCCA 400, [2006] B.C.J. No. 2074
at para. 4.

[40]        
In this case and against the backdrop of
previous judicial comment, the defence tendered Dr. Davis. He was nothing more
than an advocate thinly disguised in the cloak of an expert. That is conduct
deserving of rebuke and from which the Court disassociates itself.

[41]        
Dr. Davis attempted to inject levity to the
proceedings when he was introduced to the Court – his reference to scotch can
only be taken as an attempt to be humorous. However, these are serious and
solemn proceedings and should be treated as such. His opening comments were
unnecessary and unhelpful.

[42]        
Dr. Davis’ refusal to remove himself from
earshot of the Court proceedings despite repeated requests was reprehensible. His
conduct simply confirmed a lack of respect for Court proceedings.

[43]        
Under these circumstances, special costs are to
be awarded against the defendant.

[44]        
The special costs will be the equivalent of the
costs of the entire trial. The defendant will be deprived of any costs that it
might otherwise have been entitled to as result of the offer to settle.

Summary

[45]        
The plaintiff is awarded costs as if there had been no
offer to settle made. The defendant shall receive no costs.

[46]        
The plaintiff shall receive costs of this application.

“S.D.
Dley J.”

DLEY
J.