IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120126

Docket: 04-2102

Registry:
Victoria

Between:

Selina
Meghji

Plaintiff

And:

Jamin
Lee and Her Majesty the Queen in Right of
the Province of British Columba
(Provincial Ministry of Transportation and Highways)

Defendants

Before:
The Honourable Mr. Justice Johnston

Ruling

(On Costs)

[1]            
An issue has arisen with respect to the costs to be awarded following
judgment in this action. Judgment was handed down August 15, 2011, 2011 BCSC
1108, although an order flowing from the judgment has not yet been entered.

[2]            
The plaintiff seeks her costs of the action as ordinary costs up to an
offer to settle made by her March 24, 2009, and double costs thereafter, all on
Scale C. The plaintiff’s offer to settle was not accepted by either defendant.

[3]            
The costs options available following an offer to settle are as set out
in Rule 9‑1(5). Subrule (6) reads:

(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.

[4]            
During the hearing into the issue of costs, information concerning
settlement offers made by each of the parties prior to the final plaintiff’s
offer left open the possibility that an inference might be drawn that the
defendant Lee was insured by a liability policy that carried the minimum
$200,000 liability limit at the time of the accident.

[5]            
Following the argument, counsel were canvassed by memorandum on whether
such an inference could be drawn on the evidence and information before the
court, whether the inference ought to be drawn on that evidence and
information, and whether, under Rule 7-1(4), Mr. Lee’s liability insurance policy
limits might be disclosed.

[6]            
Rule 7-1(4) reads:

(4)        Despite subrule (3),
information concerning the insurance policy must not be disclosed to the court
at trial unless it is relevant to an issue in the action.

[7]            
Subrule (3) requires a party to list in his or her list of documents
insurance policies that, generally speaking, might be available to satisfy a
judgment in whole or in part should the judgment be entered.

[8]            
Mr. Lee has responded by arguing that the trial is over (subject, of
course, to an application to re-open prior to entry of judgment), and even if
the trial is not at an end, his policy limits are now relevant to an issue in
the action, being costs. That relevance can fall under one or more of the
considerations set out in Rule 9‑1(6).

[9]            
Counsel for the Ministry of Transportation and Highways (MoTH) disagrees
as to the relevance of Mr. Lee’s insurance limits.

[10]        
I have concluded that the amount of Mr. Lee’s automobile liability
insurance limits is relevant to the considerations set out in Rule 9-1(6). The
amount of available insurance could affect the question whether the offer was
one that ought reasonably to have been accepted, and it could also affect the
weighing of the relative financial circumstances of the parties.

[11]        
Counsel for Mr. Lee is authorized and directed to disclose the amount of
Mr. Lee’s liability insurance limits operative at the time of the accident.

[12]        
Having reviewed the responses of counsel, it appears to me that both
Ms. Acheson for the plaintiff and Ms. Callan for MoTH have largely argued
what, if any impact, Mr. Lee’s insurance limits ought to have on the question
of costs. Mr. Turnham has not done so.

[13]        
Mr. Turnham shall have 10 days from the date of this ruling in which to
disclose the insurance limits and provide any supplemental argument arising
from the amount of those limits.

[14]        
Ms. Callan shall have three days from the receipt of Mr. Turnham’s
further submission to respond.

[15]        
Ms. Acheson shall have three days from the receipt of Ms. Callan’s
further submission to respond.

[16]        
Either or both Ms. Callan and Ms. Acheson are free to indicate that they
have nothing to add to the submissions each has already made.

[17]        
Mr. Turnham shall have three days from the receipt of the last
responsive argument to reply.

                “R.T.C.
Johnston, J.”           

The
Honourable Mr. Justice Johnston