IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20141024

Docket: M142904

Registry:
New Westminster

Between:

Donna Griffith

Plaintiff

And

Dominique I.
Larsen and Nielsen Dental Laboratory (1990) Ltd.
and Melissa A. Van Leersum and Lindsay L. Cook

Defendants

Before:
The Honourable Mr. Justice Affleck

Reasons for Judgment
Re: Costs

[1]            
Damages were assessed in this action in reasons indexed at 2014 BCSC
1687. The plaintiff had suffered injuries in three accidents. On September 5,
2014 I assessed damages at $85,159. The plaintiff had served a formal offer to
settle on March 25, 2014 for $85,000. Replying on Rule 9-1(5)(b) the plaintiff
now seeks double costs from the date of the service of the offer. I am not
persuaded an award of double costs is appropriate.

[2]            
Mr. Boulton for the defendants submits that because my award included
$600 for the cost of chiropractic care and trigger point injections in the
future and because ICBC must pay that cost as accident benefits pursuant to
Part 7 of the Insurance (Vehicle) Regulation, B.C. Reg. 447/83, which
benefits are deductible from the damage award, the net award is somewhat less than
the plaintiff’s offer to settle and therefore double costs ought not to be
awarded.

[3]            
I have no basis on the record before me to determine if ICBC will pay
for the trigger point injections although I am satisfied it will pay for the
cost of chiropractic care. My assessment of the cost of future care at $600
gives me no means of segregating the cost of the trigger point injections from
the cost of chiropractic care. I am not in a position to make the full
deduction Mr. Boulton advocates and therefore not in a position to
conclude the award of damages is somewhat less than the offer.

[4]            
However, Rule 9-1(5)(b) provides that this Court exercise a discretion
when considering an application for an award of double costs. When an award of
damages exceeds a defence offer an award of double costs will usually result. Rule 9-1(6)(a),
(b) and (c) provides those factors the court may have when considering an award
of double costs and sub rule (d) provides the court with a broad discretion to
consider any other factor “the court considers appropriate”.

[5]            
I have considered two factors which have influenced my decision against
awarding double costs. The first is my findings of credibility which were not
favourable to the plaintiff. While I concluded the plaintiff had suffered soft
tissue injuries of some duration which were deserving of an award of damages, I
also concluded that she had not given her evidence with candour. An award of
double costs is meant in part to penalize a party for failing to accept a
reasonable offer. On the other hand a party who has not been candid with the
court at least in some instances ought not to be rewarded with double costs
even if her damage award exceeds the offer. This is one of those instances.

[6]            
The second factor I have considered is the defendants’ relative success
on the most contentious issue at the trial. The plaintiff advanced a claim far
exceeding the award which was largely predicated on the proposition she would
need surgery to overcome a disabling thoracic outlet syndrome. I did not accept
the plaintiff’s evidence on that issue. The defendants largely succeeded in
persuading me that the thoracic outlet syndrome, if the plaintiff actually
experienced it, had little effect on her physical condition. That is a further
reason for concluding it is not appropriate to penalize the defendants with an
award of double costs.

[7]            
In Mudry v. Minhas, 2010 BCSC 1110, Kelleher J. discussed
apportionment of an award of costs for relative success on an issue under the
then Rule 57(15). While the court concluded the plaintiff had not met the test
for apportionment, the plaintiff’s success in that case on the issue of fault
(although no damage was found and the action dismissed) was a relevant factor
under Rule 37B(6)(d), now Rule 9-1(5)(b), on considering if the defendant was
entitled to double costs when there had been a defence offer, which in Mudry
obviously exceeded the damage award which was nil..

[8]            
I acknowledge there is some merit to the plaintiff’s submission that,
notwithstanding the absence of success on the issue of thoracic outlet
syndrome, the plaintiff’s offer took into account the risk of failure on that
issue. Nevertheless, in the circumstances of this action I am unwilling to
penalize the defendants in costs when they largely succeeded on that question. The
usual rule will prevail that party and party costs on Scale B follow the event.

“Mr. Justice Affleck”