IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20101220

Docket: 091212

Registry:
Victoria

Between:

Spencer Dickson

Plaintiff

And

Insurance
Corporation of British Columbia,

John
Doe and/or Jane Doe

Defendant

Before:
The Honourable Madam Justice Russell

Reasons for Judgment on Costs

[1]            
On June 25, 2010, I gave oral reasons for judgment in a Rule 18A (as it
then was) application for summary dismissal of the plaintiff’s claim for
damages in a personal injury action.

[2]      In my judgment, I divided liability 50/50
between the parties.

[3]      At the conclusion of the matter, counsel for
the defendants advised that he had made an offer to settle for 50% liability
five days before the hearing and wished to raise the issue of costs.

[4]      I heard very brief submissions by both parties
but the plaintiff was not prepared for those submissions on that date and to
avoid unfairness, I ordered that the parties would have the opportunity to make
written submissions on costs by September 30, 2010.

[5]      By September 30, 2010, I had heard nothing from
either party and so assumed the issue of costs had been settled.

[6]      On November 22, 2010, I received an emailed
submission made on behalf of the defendants forwarded by the Victoria Registry.

[7]      A submission from the plaintiff followed
raising the issue of the substantial delay past the deadline of September 30,
2010.

[8]      I was then advised by counsel for the
defendants of a serious accident and injury he had suffered on June 26, 2010,
remedial surgery and lengthy convalescence which followed that had resulted in
a delay in his submission.  He asked that I consider the reasons for the delay
in his submissions.

[9]      Plaintiff’s counsel chose not to add anything
to that advice and did not make submissions on the issue of costs.

[10]    I have reviewed the lengthy submissions of the
defendants and have reviewed as well my notes on the brief comments made by
plaintiff’s counsel on the issue of costs on June 25, 2010.

Analysis

[11]    Under the previous Rule 37 it is clear the defendants
would have been entitled to double costs for matching the offer since it was
equal to or better than the result achieved.  However, the “new” Rule 37B, as
it then was, is clearly open-ended and affords discretion to the court to
consider the following factors:

(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 on any later date;

(b)      the
relationship between the terms of settlement offered and the final judgment of
the court;

(c)      the relative financial
circumstance of the parties; and

(d)      any other factor the court
considers appropriate.

[12]    The question of liability was not simple and it was
not unreasonable for the plaintiff to have refused the defendant’s offer at the
date it was made or before the hearing.  This factor is in favour of the
plaintiff.

[13]    It is my view that the plaintiff’s position is one
of serious disadvantage as a result of the accident.  I recall that he was
unable to work for a long period of time as a result of his injury and was
still unable to return to work by the time of the hearing.

[14]    The plaintiff is the sole support of his family and
either had run out of disability benefits or was close to the end of those
benefits by the time of the summary trial.

[15]    Because the identity of the defendant driver was
unknown, I am not aware of his financial circumstances and cannot consider
them.

[16]    I may not consider the relative financial power of
the named defendant, the Insurance Corporation of British Columbia, since it is
the circumstances of the parties, not of their insurer which should be
considered.  (Bailey v. Jung, 2008 BCSC 1372, paras. 33 and 34.)

[17]    I view the financial circumstances of the plaintiff
as compelling on the issue of whether double costs should be awarded.

[18]    In Osooli-Talesh v. Emami, 2008 BCSC 1749,
the offer to settle matched the judgment achieved and Sigurdson, J. concluded
that the court may award payment of double costs where an offer to settle matches
the results at trial.  However, he went on to consider all the factors listed
in Rule 37B.  He determined that the parties had divided success and should
therefore bear their own costs.

[19]    I am guided by that decision and consider it
apposite to the circumstances of this case.

[20]    I award costs of this
case to the plaintiff to the date of the receipt of the defendants’ offer to
settle and order both parties to bear their own costs thereafter.

“L.D. Russell J.”

_______________________________________

The
Honourable Madam Justice Russell