IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20131213

Docket: B993651

Registry:
Vancouver

Between:

Moon Hee Han

Plaintiff

And

Gregory Allen Park
and
Sandra Michele Bazley

Defendants

Before:
The Honourable Madam Justice Fitzpatrick

Reasons for Judgment

Introduction

[1]            
Following a 14-day jury trial in October 2013, the plaintiff Moon Hee
Han was awarded $51,300 for non-pecuniary damages. This trial was somewhat
unusual in that it concerned a motor vehicle accident that had occurred some 14
years earlier in May 1999.

[2]            
The matter for determination now relates to costs. Ms. Han seeks costs for
the entire proceeding. The defendants concede that Ms. Han is entitled to some
costs from earlier in the proceedings but they seek costs from as early as 2002
given certain settlement efforts made by them.

Background Facts

[3]            
Ms. Han was injured in a motor vehicle accident on May 6, 1999. At the
time she was about 36 years of age. Her principal activities were working as a
database programmer and taking some courses in the same field. She was in good
health.

[4]            
Liability was admitted by the defendants. There was no dispute that the
collision was severe and that Ms. Han suffered soft tissue injuries as a
result. The defendants readily and quickly conceded such injuries and that Ms.
Han was unable to work as a result of the accident until later in the fall of
1999.

[5]            
The major issue that arose related to Ms. Han’s contention that her
injuries included a brain injury or alternatively, that her soft tissue injuries
had resulted in a permanent disability. Indeed, on the recommendation of her
general practitioner, Ms. Han did return to her job in the fall of 1999 until
she was asked to resign in December 1999. Since that time, she has been
unemployed.

[6]            
This matter has had a somewhat tortured history. Ms. Han has been
represented, over the last 14 years, by some eight different counsel, though at
times she was unrepresented. Ms. Han was examined for discovery by the
defendants on seven separate occasions from 2001 to 2013 which appeared to be
necessary in part because her alleged injuries and symptoms changed and
increased over the years following the accident. For example, Ms. Han was
videotaped by the defendants on numerous days in late 2001 walking briskly on
the street for hours at a time while she went about her day; yet, mysteriously,
she decided that she needed to start using a cane in 2005 to allegedly deal
with her injuries.

[7]            
Since late 1999, Ms. Han has received a number of social benefits,
including unemployment and welfare payments. For some years now, Ms. Han has
been receiving disability payments and disability tax credits from the provincial
and federal governments.

[8]            
At the trial, Ms. Han claimed non-pecuniary damages. She also claimed
significant damages for loss of income to the time of the trial and loss of
earning capacity to age 65 as a result of her alleged injuries. The latter
claims approached $2.5 million.

[9]            
Three separate trial dates were arranged: one in 2003, one in 2007 and
finally one in October 2013 which did proceed. At trial, the jury awarded
$51,300 for non-pecuniary damages and declined to award anything for the
substantial loss of income claims advanced by her.

[10]        
Clearly, the jury’s award reflects that they were not satisfied that Ms.
Han was disabled as a result of the accident, whether from a brain injury or
otherwise. The award reflects that the jury awarded non-pecuniary damages only
for the soft tissue injuries which the defendants had conceded from the outset were
owing to Ms. Han.

Discussion

[11]        
On September 20, 2002, the defendants delivered a formal offer to Ms.
Han to settle the action for the sum of $50,000, which was said at that time to
include advances of $4,000, and costs. This offer is an “offer to settle” as
defined in the Supreme Court Civil Rules, B.C. Reg. 168/2009, Rule
9-1(1)(a) since it was delivered pursuant to Rule 37 of the former Supreme
Court Rules.

[12]        
Accordingly, this formal offer to settle may be considered in the
exercise of the court’s discretion in relation to costs: Rule 9-1(4). The
court’s discretion is to be exercised after consideration of the factors listed
in Rule 9-1(6):

Considerations of court

(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.

[13]        
I consider the Rule 9-1(6) factors as follows.

(a)      Should the 2002 offer
have been accepted by Ms. Han and if so, when?

[14]        
The writ and statement of claim were filed in August 1999. By the time the
formal offer to settle was delivered in 2002, various steps had taken place in
the action. Ms. Han had been examined for discovery on two separate occasions.

[15]        
Given Ms. Han’s allegations concerning her ongoing disability, the
defendants were required to carefully address the medical evidence. By the fall
of 1999, Ms. Han’s general practitioner had cleared her to return to work. As
mentioned earlier in these reasons for judgment, Ms. Han did return to her
workplace until she resigned from her job in December 1999 at the request of
her employer by reason of questionable behavior by Ms. Han.

[16]        
The defendants also set about obtaining various medical opinions: (1) in
October 1999, that of Dr. Yu, an orthopaedic surgeon, confirming the soft
tissue injuries and anticipating no significant long-term disability, and (2) in
April 2000, that of Dr. O’Shaughnessy, a psychiatrist, who did not diagnose a
brain injury but did diagnose some depression arising from the accident.

[17]        
Mediation took place in November 2001 and resulted in the defendants
offering $50,000 plus costs and disbursements. I am not aware that Ms. Han had
obtained any medical opinion evidence which supported her position by that time.
Ms. Han did not make any offer or counteroffer at the mediation.

[18]        
The formal offer to settle in September 2002 did not reference that in
fact, approximately $6,000 (not $4,000 as set out in the formal offer) had been
advanced to Ms. Han so the “true” value of the offer was in fact $52,000
($46,000 + $6,000). It appears that Ms. Han did not seek to clarify this matter
in terms of her consideration of the offer.

[19]        
Evidence at trial indicated that by September 2002, Ms. Han had received
substantial medical and health care consultations and treatments concerning her
injuries.

[20]        
The court in Hartshorne v. Hartshorne, 2011 BCCA 29, confirmed
that the formal offer is not to be considered with the benefit of hindsight and
in light of the actual award:

[27]  The first factor –
whether the offer to settle was one that ought reasonably to have been accepted
– is not determined by reference to the award that was ultimately made. Rather,
in considering that factor, the court must determine whether, at the time that
the offer was open for acceptance, it would have been reasonable for it to have
been accepted: Bailey v. Jang, 2008 BCSC 1372, 90 B.C.L.R. (4th) 125 at
para. 24; A.E. v. D.W.J. at para. 55. As was said in A.E. v. D.W.J.,
“The reasonableness of the plaintiff’s decision not to accept the offer to
settle must be assessed without reference to the court’s decision” (para. 55).
Instead, the reasonableness is to be assessed by considering such factors as the
timing of the offer, whether it had some relationship to the claim (as opposed
to simply being a “nuisance offer”), whether it could be easily evaluated, and
whether some rationale for the offer was provided. We do not intend this to be
a comprehensive list, nor do we suggest that each of these factors will
necessarily be relevant in a given case.

[21]        
The court will usually be reluctant to deny a plaintiff recovery if
there is a reasonable argument put forward to address the loss said by the
plaintiff to have been suffered as a result of the accident. In Fan (Guardian
ad litem of) v. Chana, 2009 BCSC 1497, McEwan J. stated:

[19] The reintroduction of
judicial discretion in costs certainly serves the ends of justice. Costs
should be a penalty for unreasonable conduct in the litigation, not a penalty
for failing to guess the outcome. In this regard, Courts must, I think, extend
some leeway to litigants holding honest but, ultimately, mistaken views of
their claims. It is generally better that such expectations be disposed of
at law, rather than discouraged. The public should not be given the impression
that there is no reasonable access to a legal resolution. It must be recognized
that some people will only be comfortable if they “hear it from the judge.”
This should be a valid option for those who seek it, not a form of deemed
unreasonableness. As such, inducements to settle, and to avail oneself of
alternate dispute resolution, ought to complement rather than obstruct judicial
determinations.  [Emphasis added.]

[22]        
This same sentiment was echoed by the court in A.E. v. D.W.J.,
2009 BCSC 505, aff’d 2011 BCCA 279, where the court spoke of the plaintiff
having “meritorious, albeit uncertain claim[s]”: para. 61.

[23]        
However, when the injury said to have been suffered by a plaintiff is
disputed, it is also expected that the plaintiff will marshal medical evidence
in support of his or her claims not only in respect of such injuries but also
that those injuries were caused by the accident.

[24]        
By the fall of 2002, some 3 ½ years had passed since the accident.
A trial had been set for March 2003. In that period of time, and with a trial
imminent, one would have expected that Ms. Han would have obtained some expert
medical evidence upon which to base her claim of disability.

[25]        
In A.E., the issues included whether the plaintiff had suffered a
significant brain injury. The court found that the brain injury was of a short
duration and did not cause her ongoing difficulties: para. 15. In
assessing an offer to settle, the court noted that the plaintiff had two
medical experts in hand to support her position and although those opinions
were not ultimately accepted by the court, the plaintiff was reasonable in
rejecting the offer: paras. 16, 55-56.

[26]        
Ms. Han relies on Payne v. Lore, 2010 BCSC 1313. The plaintiff
had been off work between the accident and the trial. In addition to past wage
loss, the plaintiff sought an award for future income loss which was dismissed
as the court rejected the claim of mild traumatic brain injury and found that
she could return to work. However, in considering the reasonableness of an
offer to settle at slightly more than the net award, the court also considered
that the plaintiff’s claim was somewhat supported by medical evidence:

[26]  The
offer of $250,000, open for four days, was then reduced to $225,000. The
$250,000 offer exceeded the net tort award, but only by $5,000. Was it
unreasonable on the plaintiff’s part to reject that offer? At the time of the
offer, which was made only a few days before trial, Ms. Payne was still
receiving long-term disability benefits. Some, albeit not all, of the
medical consultants, including some who were her treating physicians, supported
her assertion that she could not return to work in her previous job. I
ultimately concluded that she did not suffer any ongoing brain injury that
would preclude her from returning to work, albeit with the job and economic
modifications to which her employer testified and was prepared to put in place.

[27]  Ms.
Payne had been off work for almost four years at the date of trial. I accepted
that she had in fact been unable to work that entire time. For three of those
years, she had undergone painful and unsightly surgery to her mouth. The
evidence from her employer about the nature of her work and the accommodations
that could be made upon her return to work, as well as the opinions of the
experts, satisfied me that Ms. Payne did not suffer from ongoing mild traumatic
brain injury. On that basis, I concluded that Ms. Payne could return to work.
That conclusion precluded any award for future income loss.

[28]  Notwithstanding
that conclusion, it was not unreasonable of Ms. Payne to anticipate, prior to
trial, that she could receive an award for at least some future loss of income,
particularly as she was still off work and receiving long-term disability
benefits at the time. Had there been any award under that head of damage, the
$250,000 offer of the defendants would have fallen well short of what she did
receive as part of the ultimate tort award.

[29]  Accordingly,
in my view, the offer was not one that ought reasonably to have been accepted
by Ms. Payne.

[Emphasis added.]

[27]        
Unlike the circumstances in A.E. and Payne, Ms. Han failed
to produce any medical opinion evidence in support of her claim of
disability by the fall of 2002, and indeed did not produce any medical
opinion evidence by the time of trial.

[28]        
Ms. Han argues that she did have support from her treating doctors and
she stated this quite clearly in her evidence at trial. Yet no report was ever produced
that firmly expressed the opinion that she was disabled. The closest that Ms.
Han got to introducing any such evidence was the production of certain clinical
records which in places referred to a “brain injury”. Not surprisingly, these
clinical records were introduced at trial on the express basis that any opinions
in those records were inadmissible.

[29]        
Ms. Han also argues that she had further “support” for her position
arising from the fact that she accessed certain “provincial and federal
disability plans” and that she receives a “disability tax credit”. She did
produce her application for disability payments and the tax credit application,
both of which were signed by Dr. Feldman in 2002 and 2004. Yet, she never
produced any report from Dr. Feldman or any other doctor expressing an opinion
that she had a brain injury or other disability and that any such injury was
caused by the accident. In these circumstances, the fact that Ms. Han may have
been told by certain medical personnel from time to time over the years that she
is “brain injured” is hardly compelling. Dr. O’Shaughnessy stated during cross-examination
that it is easy to get a doctor to sign such forms since there is little
incentive to spend time researching opinions when MSP does not pay for it.

[30]        
It is beyond question that Ms. Han was required to prove her claim of
brain injury and disability at trial. Further, she could not have anticipated any
success at trial unless she obtained medical opinion evidence. Otherwise, the
court would have been left with Ms. Han’s mere assertions of disability which are
hardly sufficient to prove such a serious injury. It is inconceivable that Ms.
Han would not have received such legal advice from the many lawyers who have
acted for her over the last 14 years.

[31]        
In that event, one wonders how Ms. Han went about assessing the formal offer
to settle save for considering that she still had no such opinion evidence in
support of her claims. Did she then set out to obtain such evidence? Apparently
not.

[32]        
In large part, Ms. Han’s position on this point rests on this simple
proposition as stated by her counsel during argument:

The offer of $50,000.00 from the
Defendant was not reasonable for her to accept considering that she was not
working. This offer would have provided no meaningful benefit to the Plaintiff.

[33]        
This statement entirely misses the point. Ms. Han was not entitled to be
compensated by the defendants simply because she was not working. There are
many social benefits funded by the governments which assist people in difficulty
and it certainly seems that Ms. Han has extensively sought and received that
support, although one might reasonably question the basis upon which she has
done so.

[34]        
The issue was clear enough – did Ms. Han suffer a brain injury or
other permanent disability and was it as a result of the accident? The
defendants made efforts to satisfy themselves on these issues after the action
was filed and years after the accident they made a bona fide offer to
settle based on the results of those efforts. Ms. Han was not entitled to just
bury her head in the sand hoping that some medical opinion evidence in support
of her position would magically appear at some point. The fact that Ms. Han did
not obtain such evidence in 2002 or ever, speaks volumes and inevitably points
to the conclusion that no such evidence ever existed.

[35]        
In light of the offer to settle in 2002, Ms. Han was required to
carefully consider her case and whether her contentions could be supported in a
trial. One of the purposes of the Rule is to “requir[e] 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”: Hartshorne, para. 25.
The court’s statement in Hartshorne, para. 25, makes it clear that a
plaintiff who fails to accept a reasonable settlement offer will suffer a
“penalty”.

[36]        
Ms. Han entirely failed to address the offer to settle, an offer that
clearly responded to the soft tissue injuries which admittedly she had suffered,
but rejected her contentions of ongoing disability.

[37]        
Given Ms. Han’s position over the course of this litigation, the
defendants were required to expend considerably more funds to defend the
allegations of disability. Four further reports from Dr. O’Shaughnessy were
obtained in November 2003, May 2004, June 2013 and August 2013. By his November
2003 report, Dr. O’Shaughnessy had reviewed more records and reconfirmed his
opinion that Ms. Han had not suffered any brain injury and that she had made a
“good recovery” from her depression. His later reports only reinforced his view
from this date.

[38]        
The defendants’ later efforts to resolve this matter post-2002, either
to settle or to move to an expeditious resolution of the issues at trial,
continued to be elusive. The March 2003 trial date was adjourned by consent and
further discoveries of Ms. Han took place in January 2005, January and April
2006 and February 2007 in anticipation of the new trial date in September 2007.
That trial date was lost due to Ms. Han getting new counsel.

[39]        
A judicial settlement conference was held in February 2008 and later
continued in January 2009. At that time, Ms. Han claimed approximately $1.1
million. Ms. Han’s counsel’s Judicial Settlement Conference Brief includes extensive
reference to Ms. Han having been diagnosed, by the summer of 2001, with a mild
traumatic brain injury by several doctors (Drs. Feldman, Wild and Thiessen). If
that is the case, then one must wonder whether those doctors ever formed that
opinion and put it in a report so as to support Ms. Han’s case. Again, no such
reports were produced in the trial and Ms. Han did not mention any such reports
in her submissions on this application.

[40]        
On July 2, 2009, the defendants sent a letter to increase their offer to
$110,000 “new money” over and above the disbursements of $5,962 and costs. The
offer, which was not a formal offer to settle, was open for acceptance to July
9, 2009. Ms. Han did not respond to this offer. In any event, this informal
offer did not affect the formal offer to settle from 2002: Mackenzie v.
Brooks, 1999 BCCA 623 at paras. 19-30.

[41]        
Eventually, at the request of defence counsel, the court appointed a
Case Management judge. Numerous case management conferences followed to get the
matter ready for the then scheduled trial in October 2013. The final and
seventh examination for discovery was held in July 2013.

[42]        
On the eve of the trial, the defendants made one last effort to settle.
On September 27, 2013, they made an informal offer of $120,000 which was
confirmed to have been “available” since the Judicial Settlement Conference in
2009. This informal offer was expressly said not to replace the formal offer
from 2002.

[43]        
On September 30, 2013, and in what was Ms. Han’s only settlement
offer in the matter, she replied and offered to settle for $888,000 in the face
of her contention that her claim was approximately $1.46 million.

[44]        
The only expert evidence produced by Ms. Han at the trial was a report
from a neuropsychologist, Dr. Viljoen, from April 2013. However, it was readily
conceded by Ms. Han that Dr. Viljoen was not a medical doctor and he was not
qualified to opine on whether Ms. Han had suffered a brain injury as a result
of the accident: Meghji v. Lee, 2009 BCSC 1542 at paras. 29-32.

[45]        
Later still, the defendants obtained a report from Dr. Woolfenden, a
neurologist, in September 2013 just before trial. He expressed the view that it
was “improbable” that Ms. Han had suffered a mild traumatic brain injury. For
inexplicable reasons, Ms. Han seized upon this opinion and Dr. Woolfenden’s
statement during cross-examination that a brain injury was “possible”. It did
not seem to matter that this “possibility” still did not elevate Ms. Han’s
claim to the necessary burden of proof that she was required to meet on this
issue.

[46]        
During argument on this application, Ms. Han suggested that she was not
able to finance the costs of having a medical doctor provide an opinion and
attend in court to support her assertion that she was permanently disabled. No
evidence was provided in support of this suggestion. In any event, it belies
belief that any lawyer would not have advised that such evidence was necessary
to support such a claim and that impecuniosity would not have relieved her of
this requirement.

[47]        
In these circumstances, I conclude that Ms. Han unreasonably rejected
the September 2002 offer. She took no steps to obtain support for her brain
injury claims despite it being the seminal issue in this litigation. The
defendants clearly communicated their position at the outset by denying that
she had suffered any brain injury as a result of the accident.

[48]        
The question that must then be answered is when should Ms. Han have
accepted the offer? By July 2000, the only report that I am aware of concerning
Ms. Han’s alleged disability was Dr. O’Shaughnessy’s report of April 2000. In
that report, while Dr. O’Shaughnessy did not identify any brain injury, he did
identify ongoing depression caused by the accident. He also stated that he
needed further records to better assess the nature of her difficulties.

[49]        
By the time of his later report in November 2003, Dr. O’Shaughnessy had
reviewed and analyzed these further records. These records included a “report”
of Dr. Wild from 2001, clinical records of Dr. Kramer and records of Dr.
Feldman. By this time, depression had been a symptom but had “improved substantially”
and she “seemed to have had a good recovery”. Dr. O’Shaughnessy stated:

…She now perceives herself to be
severely brain-injured, handicapped, and disabled and claims her physicians
have affirmed this. This is not my understanding from review of the medical
records noted above.

[50]        
Further reports from G.F. Strong Rehabilitation Centre were later
reviewed by Dr. O’Shaughnessy in May 2004, again on the basis of Ms. Han’s
suggestion that they supported her claim of brain injury. Again, Dr.
O’Shaughnessy confirmed that the early records, including those of G.F. Strong,
did not suggest any brain injury.

[51]        
The fact that Ms. Han did not produce one report from any of the
physicians who supposedly diagnosed her brain injury and that this injury arose
from the accident is evidence enough to indicate that Dr. O’Shaughnessy was
correct in his assessment of the earlier records.

[52]        
By the time of Dr. O’Shaughnessy’s reports in November 2003 and May 2004,
Ms. Han would or could have had the full benefit of any opinion that might have
been available on the extent and cause of her injuries. I conclude that in
these circumstances, the formal offer to settle should have been accepted by
her within a reasonably short period of time after Dr. O’Shaughnessy’s May 2004
report which provided a final opinion on the various records that she was
apparently relying on to that point in time.

(b)      What is the relationship between the offer and the jury award?

[53]        
The formal offer to settle was in the amount of $50,000. As stated
above, the “new money” was actually $46,000 which, when added to the actual
advances of approximately $6,000, puts the offer at slightly above the jury
award of $51,300. It is evident that the actual advances claimed to have been
made by the defendants were not brought to the attention of Ms. Han, although I
have no doubt that Ms. Han would have been fully aware of what benefits had
actually been paid to her by that time. Keeping this in mind, I am prepared to
consider that the “true” amount of the offer was this higher amount and was
therefore greater than the jury award: Rule 9-1(5)(d).

[54]        
Otherwise, the face amount of the settlement offer was just slightly below
the amount of the jury award by $1,300. That fact, however, does not
necessarily mean that this becomes an irrelevant factor in the analysis. The factor
is not that the offer amount was exceeded by or was below the award, but rather
focusses on the “relationship” between the two. In this case, the amount of the
offer was very close to the actual amount awarded. The actual amount awarded represented
only a 2.6% increase beyond the $50,000 offer. To use the words of this court
in A.E. in relation to Ms. Han’s claims of brain injury, the “offer is
not inconsistent with the result the plaintiff knew she would face if she did
not succeed on causation”: at para. 57.

[55]        
There is, however, another factor to be considered in comparing the two
amounts. In most cases, the time between these two events is relatively short
and the time factor of money will not be of particular relevance. In this case,
the time factor of money becomes more significant due to the unusually long
period of time between the offer to settle in 2002 and the jury award in 2013,
just over 11 years.

[56]        
The defence produced a report from Associated Economic Consultants Ltd.
dated October 28, 2013. That report states that the future value of $50,000 in
2002 would be $61,100 in 2013 dollar terms. Put differently, Ms. Han’s recovery
of $51,300 today would have a value in 2002 dollars of approximately $42,000.

[57]        
Put in these terms, Ms. Han’s ultimate recovery would have been more
than the jury award if she had accepted the $50,000 offer as early as 2002 and these
calculations infer that such would have been the case even as late as 2004.

(c)      What are the relative financial circumstances of the parties?

[58]        
Ms. Han’s evidence at trial was that she has been receiving a modest
disability payment from the provincial government for some years now. I might
add again that she appears to have secured this benefit based on opinions
expressed by her doctor to the government agencies. However, that same doctor was
not called as an expert witness in this litigation to express the opinion that
Ms. Han was in fact disabled and that it arose from the accident.

[59]        
It is quite apparent that Ms. Han has been supported in this litigation
by her lawyers and also by her former boyfriend who financed certain
disbursements.

[60]        
This is not a situation where the greater financial circumstances of the
defendants have been used to secure a litigation advantage: Gonzales v. Voskakis, 2013 BCSC 675 at
para. 39.

[61]        
The defendants have characterized this litigation as Ms. Han attempting
to gain a “windfall” in circumstances where she has faced little, if any,
financial consequences in pressing forward with this litigation. In my view,
there is some merit to this argument, particularly in light of the stark fact
that despite 14 years of litigation, no medical evidence was ever produced to
support Ms. Han’s contention that she was in fact disabled over these 14 years.

[62]        
Ms. Han did, in a sense, have little, if anything, to lose in rolling
the dice to see if she could secure an award based on her claims.

[63]        
I have no evidence about the actual costs and disbursements incurred by
either party over the last 14 years. I do, however, appreciate that any award
of costs to the defendants will substantially lessen the jury award in favour
of Ms. Han. Nevertheless, I consider that Ms. Han’s actions and inaction in the
litigation have shown more than sufficient reason to justify the “penalty”.

d)       Are any other factors relevant?

[64]        
The defence submits that a further factor relevant to the costs award is
Ms. Han’s general conduct in the litigation. They point to her refusal over
almost the entire 14-year period to provide any meaningful settlement offer
until the eve of the trial.

[65]        
The defence criticizes Ms. Han’s first and only settlement offer in the
amount of $888,000 as not being “real” and only really tied to the Chinese
tradition in considering that the number “8” is lucky. It may be the case that
the settlement number was arrived at for this reason, but I am not prepared to
discount the bona fides of Ms. Han given that it amounted to a
substantial discount from the figure stated for her claims.

[66]        
Her offer was, however, cold comfort to the defendants who had been
waiting for 14 years for not only a settlement offer, but a reasonable
settlement offer which accorded with the evidence.

[67]        
The defence also contends that part of Ms. Han’s strategy in this
litigation was to create pressure on various participants, including the
defendants, to “extract financial compensation” for her alleged injuries. Ms.
Han did launch various complaints over the years concerning this matter. These
complaints were directed at: her union; various doctors, including her own
general practitioner and Dr. O’Shaughnessy; at least one of her lawyers; and
even the lawyer for the defendants.

[68]        
I am, however, reluctant to consider that these actions are a basis for
a costs award sought by the defendants. Ms. Han says that she had good reason
to launch these complaints given her firmly held views about the extent of her
injuries and her perception that these other parties were somehow to blame for
her not achieving the recovery she thought she deserved. The evidence did not
disclose that anything came of those complaints. They seemed to have been dealt
with on a nuisance basis, although I acknowledge that the object of these
complaints would have faced aggravation and perhaps costs in dealing with them.
In my view, Ms. Han’s conduct in this respect, while troublesome, does not rise
to the level of blameworthy conduct: see for example, Hartshorne, para. 35.

Conclusion

[69]        
Like the plaintiff in Bailey v. Jang, 2008 BCSC 1372, aff’d 2011
BCCA 146, Ms. Han took a considerable “gamble to achieve a significant award”
and lost: paras. 22, 38. Given that the majority of the time at trial was
spent on her unsuccessful attempt to persuade the jury of her disability, one
can only describe her as being substantially unsuccessful at trial.
Accordingly, even without the application of Rule 9-1, Ms. Han would have faced
meritorious arguments by the defence that a costs award should reflect that
result and my conclusions below are also consistent with an analysis in this
context.

[70]        
She conducted herself in this litigation so as to ignore the
considerable efforts of the defendants to gather evidence regarding the extent
of her injuries, all at considerable cost to them. The early efforts of the
defendants were geared to either provide a proper basis for a negotiated
settlement or to provide the necessary evidence for a trial. All the while Ms.
Han entirely failed to muster any medical opinion evidence that she either knew
or should have known would be needed to support her claims at the end of the
day. She refused to respond to any settlement offer until the eve of the trial.

[71]        
Ms. Han’s intractable position must nevertheless be considered in the
face of the July 2002 offer to settle. By this time, over three years had gone
by and one would have thought that she would be in a position to critically
consider her position. The offer fully addressed the position of the defendants
that no brain injury had occurred. The premise of the offer was not
contradicted by any medical opinion evidence obtained by Ms. Han. Even if she
had chosen, strangely, to rely on the medical evidence of the defendants, by no
later than May 2004, Dr. O’Shaughnessy had emphatically concluded that no disability
or brain injury had resulted from the accident.

[72]        
In the above circumstances, Ms. Han’s position was not an “honest but
… mistaken view” per Fan, nor did she have a “meritorious, albeit
uncertain claim” per A.E.

[73]        
The defence calls Ms. Han “delusional” and while the remark is
uncharitable, it is not far from the mark. Ms. Han has purposely conducted this
protracted litigation where there was no basis in the evidence upon which to
conclude other than that she had suffered a relatively straightforward soft
tissue injury. Despite that, 14 years of litigation has gone by, no doubt at
great cost to the defendants and to those who have financially supported this
litigation on behalf of Ms. Han.

[74]        
I conclude that Ms. Han is entitled to her taxable costs, including
disbursements, of the action to May 2004. The defendants are entitled to their
taxable costs, including disbursements, from June 2004 which will include this
application to determine costs. Both costs awards will be on Scale B.

“Fitzpatrick J.”