IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120626

Docket: M113976

Registry:
New Westminster

Between:

Jeannine Louise
Cunnington

Plaintiff

And

Adam Michael
Bloomfield

Defendant

Before:
The Honourable Mr. Justice Crawford

Reasons for Judgment re Costs

[1]            
Ms. Cunnington sought damages for personal injuries sustained in a
motor vehicle accident that occurred 20 September 2006. Her two-day trial
before a jury took place on November 14 and 15, 2011. The jury awarded the plaintiff
$4,000 non-pecuniary damages, and $1,000 special damages. The defendant had
offered to settle the plaintiff’s claim for $12,500 and disbursements on
October 14, 2011.

[2]            
Rule 14-1(10) provides:

A plaintiff who recovers a sum
within the jurisdiction of the Provincial Court under the Small Claims Act
is not entitled to costs, other than disbursements, unless the court finds that
there was sufficient reason for bringing the proceeding in the Supreme Court
and so orders.

[3]            
Formal offers and their costs consequences are found in Rule 9-1.

[4]            
The law on these rules is well set out by Arnold-Bailey J. in Cairns
v. Gill, 2011 BCSC 420.

[5]            
Thus my first consideration is whether the plaintiff had sufficient
reason to bring her claim in Supreme Court at the time of the commencement of
the action. The potential value of the plaintiff’s claim is a principal factor
to consider, along with the other “tools” provided for in the Supreme Court
Rules such as discovery which are not available in Small Claims Court.

[6]            
Plaintiff’s counsel submits at the time of the writ on July 8, 2008 the
plaintiff had ongoing soft tissue injuries to her back and was exhibiting significant
emotional problems. There was no evidence on the “emotional problems”. And
indeed the argument is problematic. It was not pleaded. Nor did plaintiff’s
counsel have any medical records that might indicate “significant emotional
problems”.

[7]            
Counsel said he had taken similar cases to court and in his opinion at
that time the case was worth more than $25,000.

[8]            
However the defendant points out that it was a minor accident in terms
of collision impact; the plaintiff saw her doctor five times out of the four
months post-accident which occurred on September 20, 2006; the plaintiff had
finished her physiotherapy treatments within three months of the accident; the
plaintiff lost no income from her work; no mention of “driving anxiety” had
been made, let alone the descriptor post traumatic stress syndrome; in fact the
plaintiff had gone on two driving holidays from British Columbia to California
and return; and the plaintiff had changed her employment from an office job to
a job requiring a lot of driving.

[9]            
In sum I do not find sufficient reason for the writ issuing in Supreme
Court and therefore the plaintiff is only entitled to her disbursements.

[10]        
As well however the defendant had made its offer to settle and seeks
costs from the time of the offer.

[11]        
Under Rule 9-1(6) this is a matter of discretion, requiring the Court to
consider whether the offer to settle was one that ought reasonably to have been
accepted on the date the offer was made or later; the relationship between the
terms of settlement offered and the final judgment of the Court; the relative
financial circumstances of the parties; and any other factor the Court considers
appropriate.

[12]        
By the time the matter was ready for trial the family doctor had given
an opinion which inter alia found there were ongoing low back problems
and that the plaintiff had suppressed her driving anxiety and described her
mental issues as evidence of a post traumatic stress syndrome.

[13]        
The plaintiff’s solicitor, given his prior successes in these matters,
thought he had a matter worth more than $25,000.

[14]        
That assessment was not made “with the benefit of hindsight” and
accordingly I accept the plaintiff felt obliged to continue to trial in spite
of the offer made.

[15]        
The award of the jury was low. But as noted in Cairns at para. 50,
the unpredictability of a jury is a relevant consideration.

[16]        
It is said that the plaintiff is not lacking in income and no evidence
as to her assets have been put forward to properly consider her position. But
as discussed in several of the cases, the defendant through their insurer is
able to cover their costs. The plaintiff on the other hand has a dependent
husband and a reduced income, though that by choice.

[17]        
The other factor I consider appropriate is of course my assessment of
the plaintiff’s case upon the issuing of the writ and I have found counsel’s
assessment was over-optimistic and therefore the plaintiff is already deprived
of costs.

[18]        
In the circumstances I will allow the plaintiff her disbursements
throughout, but I will make no order as to costs payable to either side.

“The
Honourable Mr. Justice Crawford”