IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Russell v. Parks, |
| 2012 BCSC 1962 |
Date: 20121224
Docket: 19093
Registry:
Cranbrook
Between:
Lenord Russell
Plaintiff
And
Kenneth Manson
Parks
Defendant
Before:
The Honourable Mr Justice Abrioux
Reasons for Judgment
Counsel for Plaintiff: | M.G. Temple |
Counsel for Defendant: | C. Cavanagh |
Place and Date of Hearing: | Vancouver, B.C. October 31, 2012
|
Place and Date of Judgment: | Vancouver, B.C.
|
I INTRODUCTION
[1]
This action arises from a motor vehicle accident (the Accident) which
occurred on August 21, 2008. The plaintiff was walking in a mall parking lot
and was struck by the defendants vehicle. In reasons for judgment indexed at Russell v. Parks,
2012 BCSC 1128, I found the plaintiff to be two-thirds contributorily
negligent. I assessed his damages at $85,000. The award against the defendant,
accordingly, was $28,305.
[2]
As a result of the submissions of counsel and an affidavit filed since
the delivery of my reasons for judgment which deals with Part 7 benefits paid
to the plaintiff, there are several issues which need to be addressed regarding
the form of the order and the question of costs. The following constitutes my
decision on these issues.
[3]
The timeline of events is as follows. The Accident occurred on August 21, 2008.
The plaintiff received $28,695.51 in statutory benefits (paid under Part 7
of the Insurance (Vehicle) Regulation, B.C. Reg. 447/83, ss. 78-104 [Regulation])
from the defendants insurer following the Accident until January 4, 2012. This
is $390.51 more than the amount owed to the plaintiff by the defendant pursuant
to my reasons for judgment. In other words, as of January 4, 2012, the plaintiff
had received the full amount of what I would later award him, although it was
impossible for either party to know that at the time.
[4]
Furthermore, on April 13, 2012, an offer to settle was made by the
defendant for $25,000. The plaintiff did not accept that offer, and made his
own offer to settle on May 29, 2012, for $75,000. Both these offers to settle
amounts were New Money, meaning they were in addition to the $28,695.51 already
paid to the plaintiff by the defendants insurer.
[5]
The action proceeded to trial from June 12 to 15 and June 18 to 20,
2012.
II THE PARTIES POSITIONS
[6]
The defendant submits that as a result of section 83 of the Insurance
(Vehicle) Act, R.S.B.C. 1996, c. 23 [Act], the plaintiffs action should
be dismissed. The plaintiff disagrees. His position is that the amount awarded
to him is exclusive of costs. When costs are taken into account he will have
been awarded an amount greater than what had been paid to him by January 4,
2012.
[7]
In so far as the amount of costs are concerned, the plaintiffs position
is that he is entitled to have the defendant pay at least 90% of his costs and
disbursements up until the date of the defendants offer to settle, being April
13, 2012. He should also receive his disbursements after that date.
[8]
The defendant submits that although the plaintiffs action should be
dismissed, he should pay the plaintiff one-third of his costs and disbursements
up to January 4, 2012. From that date until the offer to settle of April 13,
2012, the defendant says his costs should be paid by the plaintiff. From April
13, 2012 thereafter, the defendant seeks double costs.
III DISCUSSION
[9]
Rule 14-1 of the Supreme Court Civil Rules, which was formerly
Rule 57, applies. Costs follow the event unless otherwise ordered: R. 14-1(9).
A new feature of the current Rules is the application of the principle of
proportionality to the object of the Rules, being to secure the just, speedy
and inexpensive determination of every proceeding on its merits (R. 1-3).
[10]
Rule 9-1 replaces former R. 37B pertaining to costs and settlement
offers. In Danicek v. Li, 2011 BCSC 444, Kelleher J. sets out the
history of this rule:
[12] Rule 37B(5) of the Rules of Court came into effect on
July 1, 2008. It provided:
(5)
In a proceeding in which an offer to settle has been made, the court may do one
or more of the following:
(a) deprive a party, in whole or in part, of any or all of
the costs, including any or all of the disbursements, to which the party would
otherwise be entitled in respect of all or some of the steps taken in the
proceeding after the date of delivery of the offer to settle;
(b) award double costs of all or some of the steps taken in
the proceeding after the date of delivery of the offer to settle.
[13] On July 1, 2009, it was amended by adding paragraphs (c)
and (d):
(c) award to a party, in respect of all or some of the steps
taken in the proceeding after the date of delivery or service of the offer to
settle, costs to which the party would have been entitled had the offer not
been made;
(d) if the offer was made by a defendant and the judgment
awarded to the plaintiff was no greater than the amount of the offer to settle,
award to the defendant the defendant’s costs in respect of all or some of the
steps taken in the proceeding after the date of delivery of the offer to
settle.
[23] (The new Supreme
Court Civil Rules, B.C. Reg. 168/2009, came into effect on July 1, 2010.
Rule 9-1 replaced Rule 37B(5). They are identical in wording and effect.)
[11]
There are essentially three issues before me. The first is the form of
the order, which is predicated on whether the action should be dismissed. I
will then deal with the issue of costs in relation to those incurred before and
after the date of the defendants offer to settle, being April 13, 2012.
Is The Action Deemed Dismissed?
[12]
The Act replaced the Insurance (Motor Vehicle) Act, R.S.B.C.
1996, c. 231. Section 83 of the Act applies. It contains substantially the same
wording as its predecessor, being section 25 of the Insurance (Motor Vehicle)
Act.
[13]
Subsections 83(4) and (5) of the Act provide:
(4) In an action in respect of bodily injury or death
caused by a vehicle or the use or operation of a vehicle, the amount of
benefits paid, or to which the person referred to in subsection (2) is or would
have been entitled, must not be referred to or disclosed to the court or jury
until the court has assessed the award of damages.
(5) After assessing the
award of damages under subsection (4), the amount of benefits referred to in
that subsection must be disclosed to the court, and taken into account, or, if
the amount of benefits has not been ascertained, the court must estimate it and
take the estimate into account, and the person referred to in subsection (2)
is entitled to enter judgment for the balance only.
[Emphasis added]
[14]
The legislative intent of the Act is to prevent double recovery, that
is, to prevent a plaintiff from recovering the same amount of monies both by
way of the defendant through a tort action and by way of no-fault insurance
coverage: Kirk v. Kloosterman, 2011 BCSC 228 at para 11.
[15]
Part 7 of the Regulation provides that
[ICBC] shall pay benefits to
an insured in respect of death or injury caused by an accident that arises out
of the use or operation of a vehicle and that occurs in Canada or the United
States of America
(s. 79(1)). The benefits provided for under that part
include disability benefits for employed persons, disability benefits for
homemakers, medical or rehabilitation benefits, funeral expense benefits, death
benefits and survivor benefits.
[16]
In this case, the only evidence of the Part 7 benefits paid to Mr.
Russell was the affidavit of an ICBC adjuster. It contains a computer printout
showing a loss paid of $28,695.51, plus certain expenses with the handwritten
notation Part 7 TTD payments, which I assume refers to temporary total
disability benefits. There is no requirement for any deductions to match certain
specific heads of damages: see Gurniak v. Nordquist, 2003 SCC 59. Nor
does the plaintiff apparently dispute the fact he received this amount of Part
7 benefits. I am satisfied the sum of $28,695.51 is an amount which must be
taken into account by me pursuant to section 83(5) of the Act. Accordingly
the plaintiff is entitled to enter judgment for the balance only.
[17]
The defendant has established the monies paid to the plaintiff by ICBC
exceed the amount of the damages the plaintiff has been awarded. He is
notionally entitled to have judgment entered for the balance of $0.
[18]
The Court of Appeal discussed what consequences flow from such a
situation in McElroy v. Embleton (1996), 19 B.C.L.R. (3d) 1 (C.A.). In
that case, $24,000 was provided to the plaintiff by the defendants insurer. An
agreement was made between the parties with respect to those funds. It was
agreed:
[8] .. 2) that if the payee
litigates to judgment a claim arising from the above accident, the amount of
this interim payment shall be disclosed to the court after damages have been
assessed, and, subject to the next clause herein, judgment shall be entered
only for the net balance after deducting the interim payment from the gross
judgment;
[19]
At trial, the plaintiff was awarded $17,000. Southin J.A. discussed the
consequences of a negative net judgment at para. 9:
It is obvious that the sum of
$24,000 paid in 1991 far exceeded the verdict of the jury. The question is what
ought then to have followed. In my view, in light of paragraph two of that
agreement the net result was that that judgment ought not to have been entered
for the appellant at all because it is not conceivable that one can enter a
judgment in any sort of action for zero. When there is nothing to be recovered,
an action ought to be dismissed.
[20]
In my view, this reasoning applies to this case, where the application
of section 83(5) of the Act results in there being an award of $0 to the
plaintiff. Accordingly, the action is dismissed and this should be reflected in
the order.
Pre-Settlement Offer Costs
[21]
The dismissal of the action does not necessarily mean the plaintiff is
disentitled to any costs: see McElroy v. Embleton, at para. 10.
[22]
The first question is, putting aside for the moment the issue of Part 7
benefits paid, how should costs be apportioned from the time of the
commencement of the action until April 13, 2012? At trial, I found the
defendant to be one-third liable for the plaintiffs loss.
[23]
At paragraph 104 of my reasons for judgment I stated:
[104] The parties will have
their respective costs of this action at Scale B in accordance with the
apportionment of liability unless there are other factors which may impact the
question of costs. If such is the case, either party has liberty to apply to
speak to the matter of costs.
[24]
My initial finding the parties would receive their costs in accordance
with the apportionment of liability was incorrect. The effect of sections 2
and 3 of the Negligence Act, R.S.B.C. 1996, c. 333 is that when a
plaintiff is contributorily negligent and the defendant has made no claim for
damages, then the plaintiff may be entitled to only that portion of costs for
which the defendant is found liable. The plaintiff will not have to pay the
defendants costs when he/she has not suffered any damage or loss: Flatley
v. Denike (1997), 32 B.C.L.R. (3d) 97 (B.C.C.A.).
[25]
The starting point, therefore, is that the defendant shall pay the
plaintiff one‑third of his costs. Section 3(1) of the Negligence Act
preserves the courts discretion to award a plaintiff an amount other than the proportional
share of costs, but there must be reasons connected to the case to do so: Peters
v. Davidson (1981), 125 D.L.R. (3d) 753 (B.C.S.C.), aff’d. (1982), 141
D.L.R. (3d) 763 (B.C.C.A.). The principle consideration in the exercise of
discretion is whether an injustice will result in adhering to the usual rule: Forsyth
v. Sikorsky Aircraft Corp., 2002 BCCA 231, 100 B.C.L.R. (3d) 66.
[26]
In A.E. v. D.W.J., 2009 BCSC 505, affd. 2011 BCCA 279, Goepel J.
considered the following when assessing pre-settlement offer costs when the
plaintiff had been found 10% liable for her own loss:
[24] Bourelle v. Andrychuk (1998), 118 B.C.A.C. 318,
61 B.C.L.R. (3d) 191 (B.C. C.A.), concerned an appeal where the trial judge had
awarded the plaintiff 100% of his costs, even though a jury had found him 90%
at fault for the accident. The Court of Appeal agreed that in the circumstances
in the case it was appropriate for the trial judge to have exercised his
discretion in favour of the plaintiff but reduced the plaintiff’s recovery for
costs from 100% down to two-thirds. In doing so, the court noted that
approximately two-thirds of the trial time was devoted to damages.
[25] In Moses v. Kim, 2009 BCCA 82 (B.C. C.A.), the
plaintiff was found 65% at fault for the accident but awarded 90% of the costs
because 90% of the trial was devoted to the issue of damages. The Court of
Appeal reduced the cost recovery to 75%, in part because the trial judge had
failed to consider the defendant’s significant degree of success on the claim
for contributory negligence.
[26] In this case, less than five
percent of the trial dealt with liability. The liability deduction was but 10%.
Given the minimal time spent on liability and the minor degree of fault
allocated to the plaintiff, I find that in the circumstances of this case it is
appropriate that the plaintiff recover 100% of her costs up to February 1,
2008, the date of the offer to settle.
[27]
In Moses v. Kim, 2009 BCCA 82, Smith J.A. held it inappropriate
for a trial judge to consider the amount of legal fees incurred by the parties
or their financial situations.
[28]
Having considered these authorities, and subject to my findings below
regarding the Part 7 benefits, I find the plaintiff is entitled to 75% of his
costs up to the date of the settlement offer of April 13, 2012. This reflects
the fact that although the amount of time spent on determining liability at the
trial was not minimal, more time was spent regarding the assessment of
damages. This was shown in the medical evidence led, the reports which were
obtained and the like. It would be unjust not to exercise my discretion to
depart from the default rule referred to in paragraph 26 above in these
circumstances.
[29]
The next issue is whether the payment of the Part 7 benefits should
affect the award of costs.
[30]
Where Part 7 benefits exceed the eventual amount to be paid to the
plaintiff, the defendant may be awarded costs: Sandhu v. Kang, 2005 BCSC
1475.
[31]
Sandhu v. Kang was decided prior to the present amendments to the
Rules. It is distinguishable from this case in that the plaintiff in Sandhu
had received a greater amount than the damages awarded following the trial prior
to the commencement of the action. In addition, some of the pre-trial payments
made to the plaintiff were by way of tort advances and payments against special
damages, whereas in the present case, the payments were all Part 7 disability
benefits.
[32]
In Carey v. McLean, 1999 BCCA 222, it was found that the trial
had been unnecessary and the plaintiff’s action ought to have been dismissed because
he had recovered nothing in damages. Donald J.A. stated at para. 13:
In my judgment the advance ought
to have been treated in the same way as an offer to settle, resembling as it
does in all important respects the characteristics of the former procedure of a
payment into court. The receipt of monies on account of damages before trial
places an obligation on the plaintiff to realistically assess the value of his
claim knowing that proceeding to trial carries a risk in costs. I can see no
reason why the rationale for offers to settle encouragement of settlement and
avoidance of unnecessary trials should not apply to the present
circumstances. The plaintiff put the defendant to the expense of defending a
trial for no advantage. His decision to proceed should carry appropriate
consequences in costs.
[33]
In that case, the defendant had applied to adjourn the trial. The Master
granted the application on the condition the plaintiff receive an advance
payment of $40,000.
[34]
It is clear that a plaintiff, upon receipt of an advance payment, must
realistically assess his or her claim knowing that proceeding to trial carries
a risk in costs.
[35]
In Specht v. Yeo, 1999 BCCA 499, McEachern C.J.B.C. considered
this issue within the context of the different form of payments which can be
made:
[3] I will mention the three
cases very briefly. The first case is McElroy v. Embleton (1996), 19
B.C.L.R. (3d) 1 (B.C. C.A.), second, Baxter v. Brown (1997), 28 B.C.L.R.
(3d) 351 (B.C. C.A.), and third, Carey v. McLean (April 7, 1999), Doc.
Vancouver CA022968 (B.C. C.A.). In my judgment, those cases make it clear that
in the circumstances such as we have here, the proper course is for the action
to be dismissed and for costs to be awarded to the defendant if requested.
[36]
The advances in McElroy v. Embleton were interim payments made
under an agreement between ICBC and the plaintiff. In Baxter v. Brown
(1997), 28 B.C.L.R. (3d) 351 (C.A.), the plaintiff received Part 7
payments of $1,980 plus an interim payment of $3,636 and was awarded $3,000 in
damages. As noted above, the advance payments in Carey v. McLean
were not for Part 7 benefits.
[37]
It should also be noted that in McElroy v. Embleton, the
successful defendant did not recover his costs for the sole reason the effect of
an advance payment was being considered by the Court for the first time.
[38]
In my view, it would be unjust in this case for there to be the same
result with respect to costs as occurred in either McElroy v. Embleton
or Carey v. McLean. That is because the entire amount received by the
plaintiff in this case related to Part 7 benefits. Furthermore, in McElroy
v. Embleton, the plaintiff had received more funds prior to commencing the
action than was eventually awarded.
[39]
In this case, the last Part 7 benefit payment was made only six months
before the trial. The total of the Part 7 benefits paid was also only
approximately $400 more than the amount of my assessment of damages taking into
account my conclusions regarding liability.
[40]
As stated in Tangaro v. Riley (1995), 30 C.C.L.I. (2d) 232 at
para. 12 (B.C.S.C.):
The Part 7 claim is intended by
the legislation to allow a person involved in a motor vehicle accident summary
and relatively quick and inexpensive access to, amongst other relief, nominal
compensation to offset some portion at least of income loss resulting from the
accident.
[41]
Unlike a settlement offer, or a tort advance, payments under Part 7 are
statutory no fault benefits. It would be unreasonable to expect a plaintiff,
such as Mr. Russell, to decline Part 7 payments offered to him on the
basis he feared paying the defendants costs in the context of a trial whose
outcome was not readily apparent.
[42]
In the alternative, if I were to consider the payments made to the
plaintiff until January 2012 to be akin to a form of settlement offer, which I
do not, it is difficult to conceive how it could be unreasonable for the
plaintiff to decline this putative offer at the time.
[43]
This is not an appropriate case, in my view, to conclude as is submitted
by the defendant that the plaintiff should not have proceeded to trial. It was
not readily foreseeable to either party what the result was going to be with
respect to liability or the quantum of damages. In so far as liability is
concerned, I noted at para. 31 of my reasons for judgment that cases
dealing with competing duties of pedestrians and operators of motor vehicles
are highly fact specific.
[44]
Taking all of these factors into account, I conclude that for the time
period up to the defendants settlement offer of April 13, 2012, the plaintiff shall
be awarded 75% of his costs and disbursements.
Post-Settlement Offer Costs
[45]
What is the effect of the settlement offer made by the defendant for
$25,000 of New Money as defined in counsels correspondence dated April 13,
2012? The New Money was in addition to the Part 7 benefits already received by
the plaintiff. No objection was taken by the plaintiff to the form of the
defendants offer to settle.
[46]
Rule 9-1(5) and (6) of the Supreme Court Civil Rules provides:
(5) In a proceeding in which an offer to settle has been
made, the court may do one or more of the following:
(a) deprive
a party of any or all of the costs, including any or all of the disbursements,
to which the party would otherwise be entitled in respect of all or some of the
steps taken in the proceeding after the date of delivery or service of the
offer to settle;
(b) award
double costs of all or some of the steps taken in the proceeding after the date
of delivery or service of the offer to settle;
(c) award
to a party, in respect of all or some of the steps taken in the proceeding
after the date of delivery or service of the offer to settle, costs to which
the party would have been entitled had the offer not been made;
(d) if the offer was made
by a defendant and the judgment awarded to the plaintiff was no greater than
the amount of the offer to settle, award to the defendant the defendant’s costs
in respect of all or some of the steps taken in the proceeding after the date
of delivery or service of the offer to settle.
(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.
[47]
The factors in Rule 9-1(6) need to be considered in light of the purpose
of the Rules. In Dempsey v. Oh, 2011 BCSC 627 at para.19, it was said that
[i]t is not the courts function to ensure that a plaintiff makes a net
recovery from an action when it has ignored a reasonable offer.
[48]
After considering the R. 9-1(6) factors in Cairns v. Gill, 2011
BCSC 420, Arnold-Bailey J. stated:
[58] A further consideration, that the defendants
anticipated costs far exceed the plaintiffs judgment at trial, also informs my
decision on this issue.
[59].To make such an order would
have a very negative effect on the plaintiff, and have the broader effect of
further discouraging those with legitimate claims from bringing their actions
in this Court when the defendant, funded by an insurer, has deeper pockets with
which to bear the risk of a plaintiff achieving only a minor or, indeed, a
pyrrhic victory.
[49]
In referring to the purpose of the Rules, Arnold-Bailey J., in
dismissing the defendants claim for costs after the date of the offer to
settle, went on to say:
[62].In this case, pursuing a
valid, although exaggerated, personal injury claim to trial, where the offer to
settle did not provide a genuine incentive to settle in the circumstances, may,
in the face of a defence funded by ICBC, cost the plaintiff almost twenty times
what was awarded at trial. It seems consistent with the object of the Rules
generally, and of Rules 9-1 and 14-1(10), to have regard to the need to
emphasize litigation decisions that direct cases to the appropriate forum
without disproportionately penalizing a party that had some success, however
limited.
[50]
With these principles in mind I will now examine the factors set out
in Rule 9‑1(6) and apply them to the circumstances in this
case:
(a) Was the offer one that should reasonably have been accepted?
[51]
The following from A.E. v. D.W.J. applies:
[55] The offer to settle has a
value of approximately $620,000, a sum well in excess of the gross judgment.
The offer is, however, but a small fraction of the $4 million the plaintiff
sought at trial. As noted in Bailey v. Jang 2008 BCSC 1372, 63 C.P.C.
(6th) 291, this analysis is not one to be done based on hindsight once the
final result is known. The reasonableness of the plaintiffs decision not to
accept the offer to settle must be assessed without reference to the courts
decision.
[52]
In my view it was not unreasonable for the plaintiff in this case to anticipate
an apportionment of liability against the defendant which was greater than I
ultimately decided. Had liability been apportioned two-thirds against the
defendant, for example, the plaintiff would have received a judgment in excess
of the offer to settle even after the Part 7 benefits had been taken into
account.
[53]
The defendants settlement offer, taking into account the Part 7
benefits paid amounted to $53,695.51. This was considerably less than what the
plaintiff was seeking at trial, being $236,000, not including the cost of
future care. The plaintiff and defendant had very different views as to what
constituted a reasonable range of potential damages which could be awarded,
quite apart from the liability issues. Accordingly, I have concluded it was not
unreasonable for the plaintiff to refuse the defendants offer of April 13,
2012.
(b) Relationship between the offer and the final judgment
[54]
This factor weighs in favour of the defendant. The award, once liability
and the Part 7 payments were taken into account, was nil.
(c) Financial circumstance of the parties
[55]
In Gregory v. Insurance Corp., 2010 BCSC 1369, Kloegman J. stated
:
[9] The plaintiff’s counsel and
court costs are all paid by ICBC, which some case authorities say is not a
factor to consider, but more recent British Columbia Court of Appeal authority
suggests that it is a factor to consider: Smith v. Tedford, 2010 BCCA
302 (B.C. C.A.). Here, as in Smith v. Tedford, it is clear that the
financial ability to defend is much greater than the financial ability to
prosecute.
[56]
The defence in this case submits that if I consider that the defendant
is being represented by an insurer, all ICBC-insured defendants will be at a
disadvantage under this heading. In Smith v. Tedford, 2010 BCCA 302,
Lowry J.A. dealt with this issue:
[18] The defendant contends that, for good policy reasons,
insurance coverage is not to be taken into account in considering the relative
financial circumstances of the parties. She says coverage limits are not
universal and will vary between individuals. The defence of an action may be
conducted by an insurer under a reservation of rights. Further, there will
always be a substantial difference between the financial circumstances of most
plaintiffs seeking personal injury damages and defendants’ insurers such that
the considerations under Rule 37B(6)(c) will always favour such plaintiffs, and
this is a consequence that could not have been legislatively intended.
[19] While I recognize arguments
over the implications of a defendant’s insurance coverage being considered in
relation to an award of costs may go back and forth, like the judge I consider
precluding such from consideration renders an assessment of the parties’
relative financial circumstances, at least in a case of this kind, very
artificial indeed. Clearly, with ICBC having assumed the defence, the financial
ability to defend was much greater than the financial ability to prosecute, and
that is of no small importance to considering whether and to what extent the
financial circumstances of the parties, relative to each other, bear on an
award of costs where, as here, there has been an offer of settlement made ten
days before a trial for the assessment of personal injury damages which was not
accepted until the seventh day of the trial.
[57]
In Wafler v. Trinh, 2012 BCSC 1708, Voith J. citing Smith v.
Telford stated, at para. 37, it is now clear that the court may consider
whether the defendant has insurance when weighing the financial circumstances
of the parties.
[58]
In the case at bar, the plaintiff is in dire financial circumstances. The
evidence at trial regarding his income proved as much. Any award of costs
against him will certainly have serious consequences.
(d) Any other factor the Court deems relevant
[59]
There are no specific additional factors which, in my view, need to be
considered. There was, for example, no blameworthy conduct by either party in
the manner the action was brought to trial.
[60]
The purpose of R. 9-1 is to encourage settlement. At no time had the
plaintiff closed his mind to that option. In fact, he made a $75,000 settlement
offer before trial, which was not accepted. That offer was after taking the
Part 7 payments into account. Accordingly it was for approximately $103,500. This
was simply a case where the apportionment of liability and the assessment of
damages would depend on the manner in which the evidence was presented and
viewed by the Court. Both offers were within that range.
[61]
In Wafler v. Trinh, Voith J. also considered the issue of when
double costs ought to be awarded:
The Object of Rule 9-1 and an Award of Double Costs
[18] In Hartshorne
v. Hartshorne, 2011 BCCA 29, 14 B.C.L.R. (5th) 33, the court summarized the
import of a number of earlier decisions and said:
[25] An award of double costs
is a punitive measure against a litigant for that partys failure, in all of
the circumstances, to have accepted an offer to settle that should have been
accepted. Litigants are to be reminded that costs rules are in place to
encourage the early settlement of disputes by rewarding the party who makes a
reasonable settlement offer and penalizing the party who declines to accept
such an offer (A.E. v. D.W.J., 2009 BCSC 505, 91 B.C.L.R. (4th) 372 at
para. 61, citing MacKenzie v. Brooks, 1999 BCCA 623, Skidmore v.
Blackmore (1995), 2 B.C.L.R. (3d) 201 (C.A.), Radke v. Parry, 2008
BCSC 1397). In this regard, Mr. Justice Frankels comments in Giles
are apposite:
[74]
The purposes for which costs rules exist must be kept in mind in determining
whether appellate intervention is warranted. In addition to indemnifying a
successful litigant, those purposes have been described as follows by this
Court:
·
[D]eterring frivolous actions or defences: Houweling
Nurseries Ltd. v. Fisons Western Corp. (1988), 37 B.C.L.R. (2d) 2 at 25
(C.A.), leave refd, [1988] 1 S.C.R. ix;
·
[T]o encourage conduct that reduces the duration and expense of
litigation and to discourage conduct that has the opposite effect: Skidmore
v. Blackmore (1995), 2 B.C.L.R. (3d) 201 at para. 28 (C.A.);
·
[E]ncouraging litigants to settle whenever possible, thus freeing
up judicial resources for other cases: Bedwell v. McGill, 2008
BCCA 526, 86 B.C.L.R. (4th) 343 at para. 33;
·
[T]o have a winnowing function in the litigation process by
requir[ing] litigants to make a careful assessment of the strength or lack
thereof of their cases at the commencement and throughout the course of the
litigation, and by discourag[ing] the continuance of doubtful cases or
defences: Catalyst Paper Corporation v. Companhia de Navegação Norsul,
2009 BCCA 16, 88 B.C.L.R. (4th) 17 at para. 16.
Conclusion on Post-Offer to Settle Costs
[62]
Upon considering the factors in R. 9-1(6), I do not accept the
defendants submission that double costs are appropriate. There is no reason
for the plaintiff to be subject to a punitive measure. He was not unreasonable
in rejecting the settlement offer. The issues at trial made the apportionment
of liability quite uncertain. There was also a considerable range in the amount
of damages which could have been awarded. The plaintiffs finances would be greatly
impacted if an order for double costs was made against him. In addition, the
end result was effectively a nil judgment.
[63]
Taking into account the legal principles to which I have referred and
the particular circumstances which exist in this case, I conclude each party
should bear their respective costs after the date of the defendants offer to
settle. The plaintiff has already suffered some financial consequences for
proceeding to trial in that I have decided he shall not receive 100% of his
costs until the defendants offer to settle, but rather 75% of those costs.
IV CONCLUSION
[64]
The plaintiff shall recover 75% of his costs up to April 13, 2012. The
parties shall bear their own costs thereafter, including those of this hearing.
Abrioux
J.