IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20131126

Docket: M142647

Registry:
New Westminster

Between:

Rupinder Aujla

Plaintiff

And

Amraj S. Sohal and
Rajinderpal Kaur Johal

Defendants

Before:
Registrar Sainty

Oral Reasons for Decision

In
Chambers

[1]            
THE
REGISTRAR: I will start by dealing, first off, with what, I
guess, is a preliminary or threshold issue with respect to this matter.

[2]            
Briefly, the plaintiff was injured in a motor vehicle accident on
September 11, 2010.  She alleged that she suffered a number of injuries as a
result of that accident, including chronic soft tissue pain involving the neck,
upper back and posterior shoulder girdle regions, chronic pain involving the
right lateral hip and leg regions and alterations in mood secondary to dealing
with pain.

[3]            
The notice of civil claim was filed on May 30, 2011.  I understand that
liability was not in issue.  The trial was scheduled to proceed on July 2,
2013, for four days.  The defendants made an initial formal offer to settle to
the plaintiff which offer was delivered on April 29, 2013 and was in the amount
of $29,137.92.

[4]            
Subsequent to that initial formal offer, there were discussions between
counsel and an examination for discovery of the defendant was conducted.  Then,
on June 13, the defendant delivered a further formal offer to settle.  That
offer was delivered to plaintiff’s counsel’s office by fax on June 14, 2013, but,
as plaintiff’s counsel does not accept delivery by fax, the second formal offer
was then delivered, in accordance with the provisions of the Supreme Court
Civil Rules [the “Rules”], to the plaintiff’s address for delivery
on June 17, 2013.  The amount of that formal offer was $47,374.91 plus costs in
accordance with the offer to settle.

[5]            
Specifically the offer to settle provides that:

On acceptance of this offer the parties agree that subject to
the terms and conditions of appendix A:

(a)        the plaintiff is
entitled to costs assessed in accordance with Rule 14-1(1)(f) or 15-1(15) to (17)
of the Supreme Court Civil Rules and the reasons for judgment in Bowen
v. Martinec [2008 BCSC 104] and necessary reasonable disbursements to the
date of delivery of this offer assessed in accordance with Rule 14-1 of the Rules,
and

(b)        the defendants are
entitled to costs assessed in accordance with Rule 14-1(1)(f) or Rule 15-1(15)
to (17) of the Rules and the reasons for judgment in Bowen v.
Martinec and necessary and reasonable disbursements from the date of
delivery of this offer assessed in accordance with Rule 14-1 of the Rules.

[6]            
The plaintiff accepted the formal offer on June 27, 2013, some 10 days
after it had been delivered in accordance with the Rules.

[7]            
Counsel for the plaintiff, Mr. McCardell, argues that I ought to
interpret the provisions of that second formal offer – the one that was
accepted – in such a manner as would allow the plaintiff some time to consider
the costs consequences of accepting or rejecting it.  He says that it would be
incongruous to suggest that, to avoid the costs consequences of the Rules,
the formal offer must be accepted on the very date of the actual delivery,
without giving the plaintiff any time to consider it, especially when one
considers certain cases that have dealt with the specific provisions of Rule 9-1
[which deals with offers to settle] and which have considered the costs consequences
of not accepting a formal offer to settle following a trial of the issues.

[8]            
Rule 9-1(5) confirms that, in a proceeding in which an offer to settle
has been made, the court may do one or more things, and then sets out four
different things that the court can do:

(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.

[9]            
In Wong-Lai v. Ong, [2012 BCSC 1569], a decision of Sewell J.,
His Lordship considers the provisions of Rule 9-1 and notes that the Rules
give the court discretion to refuse to consider the terms of a formal offer in
deciding costs, if it considers the offer was one that the plaintiff could
reasonably refuse.  He notes that the policy underlying the Rules is to
encourage the settlement of disputes by rewarding the party who makes a
reasonable offer and penalizing the party who declines to accept such an
offer.

[10]        
In that case [Wong-Lai v. Ong], His Lordship also
refers to Dodge v. Shaw Cablesystems Ltd. [2009 BCSC 1765], a decision
of Masuhara J., which case stands for the proposition that a plaintiff
ought to be given some opportunity to consider a formal offer before the costs
consequences of the Rules around formal offers kick in to deprive the
plaintiff of her costs and to allow costs to the defendant for all steps taken
since the delivery of the formal offer.

[11]        
Ms. Harrison, for the defence, says that the offer itself is clear. 
It specifically notes that the plaintiff is only entitled to costs “to the date
of delivery” and that, in saying so, it sends a clear message to the plaintiff
as to when the costs consequences of accepting the offer to settle come into
play.  She also submits that, in this particular case, the plaintiff had received
a previous formal offer to settle and would have had an opportunity to consider
that formal offer.  Thus, Ms. Harrison argues, the plaintiff would have
had at least some understanding of a formal offer to settle, including the cost
consequences of it.  Because of that, she then ought to have been able to make
her decision on the merits of the formal offer certainly in very short order,
if not almost immediately.  Ms. Harrison also notes that the formal offer
was informally delivered on June 14 and then formally delivered on June 17.  As
such, she submits the plaintiff did have time to consider the formal offer and
should not be accorded any additional time to consider it.

[12]        
I am persuaded by the submissions of Mr. McCardell for the
plaintiff that it is open to me to read into and to interpret the provisions of
the formal offer – specifically the reference to the “date of delivery” – in
such a manner as would allow the plaintiff some time to consider the consequences
of that formal offer.

[13]        
In making this decision, I note that, in Rule 9-1 the words “date of
delivery of the offer” are actually used, and yet the court in many, many
instances has refused to set that date as the actual date that the costs
consequences of the Rules come into play.  For example – I think it was
in Arnold v. Cartwright Estate [2008 BCSC 1575] – where I think the
court allowed a plaintiff some 31 days – or another, not insignificant amount
of time – to consider an offer before invoking the costs consequences of the Rules. 
At paragraph 22 of that decision Butler J. notes that a reasonable period
of time to consider an offer to settle is seven days.  He also refers to Bailey
v. Jang [2008 BCSC 1372], another decision of this court which indicates
that seven days was appropriate to afford the plaintiff an opportunity to
properly consider a formal offer to settle before being subjected to the costs
consequences of the Rules in respect of formal offers.

[14]        
I think there was another case.  Mr. McCardell, was it the Tompkins
v. Bruce that was the one which granted a longer period?

[15]        
MR. McCARDELL: Tompkins was 25 days.

[16]        
THE REGISTRAR:  25 days.

[17]        
And, in Tompkins v. Bruce [2012 BCSC 833] the time period was 25
days.  In that particular case the judge – Curtis J. – confirms that the
purpose behind the costs consequences of reasonable offers is to encourage
settlement.  As such, it is important that someone who is provided with a
formal offer to settle be given sufficient time and information to assess the
formal offer and decide whether or not it is reasonable to accept it. 
His Lordship also notes that, on occasion when one is in the throes of
trial, there are a number of different factors to be considered in deciding
whether an offer ought to have been accepted, including such things as the
timing of the offer, for example, and, in one case the age of the plaintiff.

[18]        
Regardless, here we also have an unsophisticated plaintiff and that
should, as well play a part in the decision.  I agree with Mr. McCardell’s
point that, to this plaintiff the $50,000 that she accepted was a significant
amount of money and that, in considering the offer, she was making a major financial
decision.  And, by the time – the risk was far more significant to the
plaintiff in respect of that second formal offer than it was with the first one
made in April, which was for a much lower amount.  Mr. McCardell submitted,
and I agree with him on this point, that with that first formal offer, it was
much easier to advise the plaintiff with respect to the consequences or not of
accepting it as it was not even close to what could be expected to be awarded
at trial and, while there are the consequences to not accepting the offer, they
are not the same as are confronted when one is close to trial and facing
significant amounts of trial preparation, and, it must also be said,
potentially much higher disbursement costs personally, and, if the offer is not
bested at trial, in respect of the defendant’s trial disbursements as well.

[19]        
For all of these reasons, I am of the view that it is appropriate to interpret
the offer to settle and the use of the term “date of delivery” as allowing the
plaintiff some reasonable amount of time to consider the formal offer to settle
before attracting the adverse costs consequences of Rule 9-1(4) of the Rules.

[20]        
Here, I think there was 10 days between when the formal offer was
actually delivered to when it was accepted.  Right, was it 10 days?

[21]        
MS. HARRISON:  11.  If it was after 4:00 p.m.  It was 5 o’clock, yes.

[22]        
THE REGISTRAR:  Thank you.  I am of the view that the plaintiff ought to
be entitled to those 10 or 11 days to consider the formal offer.  I do not
think it is unreasonable in the circumstances of this case; particularly based
on what Mr. McCardell explained. He told me that it took him a few days to
get to the – he communicated informally to the plaintiff that an offer had been
made, and then put together a lengthy and detailed letter advising the plaintiff
about the offer and setting out the consequences of accepting it, or not.  He
also spoke to her about it.  He told me that she needed an opportunity to
consider it; to discuss it with her family.  This is a woman who is working
three jobs as well.  It is not always easy to drop everything to think about
the consequences of these things, especially when one is trying to put food on
the table as well.

[23]        
So in these circumstances, I find that the plaintiff was entitled to
some time to consider the offer.  She accepted it some 10 or 11 days after it
was made – very shortly before trial.  In my view, here, the defendants ought
not to be entitled to any of their costs for the time period between the offer
and its acceptance.

[24]        
I believe that disposes of the threshold issue.

“Registrar
Sainty”