Bains v. Antle, 2017 BCSC 590

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Bains v. Antle, 2017 BCSC 590 Date: 20170410 Docket: 14-4378 Registry: Victoria Between: Gursharon Kaur Bains Plaintiff And: Stephanie Rae Antle, Sangam Bains and Bobby Bains Defendants Before: The Honourable Madam Justice J. A. Power Reasons for Judgment Counsel for the Plaintiff: S. Missaghi Counsel for the Defendants: H. F. Turnham Place and Date of Hearing: Victoria, B.C. January 10, 2017 Place and Date of Judgment: Victoria, B.C.

April 10, 2017 Introduction [ 1 ] After a ten-day jury trial in October 2016, the plaintiff was awarded by the jury, $37,800.00, an amount which was substantially less than what she was seeking and expected to receive at trial for chronic myofascial shoulder pain. [ 2 ] The plaintiff seeks costs and disbursements at Scale B inclusive of the costs application. [ 3 ] The defendants seek an order that the plaintiff have her costs up until the defendants’ first formal offer to settle and that the defendants be awarded their costs of the action thereafter with a set-off as appropriate.

The defendants argue that their formal offer of September 20, 2016 -- $185,000 of new money plus costs -- ought reasonably to have been accepted on the date it was delivered. Background [ 4 ] The plaintiff sustained injuries in a motor vehicle accident on January 17, 2013 (the “MVA”).

The plaintiff claimed that she suffered chronic injuries to her shoulder and neck, which have impaired her ability to work in her sedentary position as a medical claims adjustor and that the pain also hindered her ability to care for her children. [ 5 ] At trial, liability was admitted by the defence, but the extent of injury and quantum of damages was in issue. [ 6 ] The trial commenced on October 17, 2016 and although both parties had taken out jury notices, it was the defendants who paid the fees to ensure that the trial proceeded by judge and jury. [ 7 ] The trial proceeded for two weeks and the plaintiff called six experts.

The plaintiff’s medical experts Dr. Patrick Chin (an orthopedic surgeon) and Dr. Lynn McKean (a physiatrist) agreed that the plaintiff suffered chronic injuries to her left shoulder girdle and neck as a result of the MVA. Both of the plaintiff’s medical experts agreed that she would have difficulty returning to her full-time work which was a sedentary, desk job. Therefore, the issue of future wage loss and future cost of care was significant on the trial.

The defendants did not call any witnesses at trial, although the defence significantly challenged the plaintiff’s claim on cross-examination. [ 8 ] The facts at trial were complicated by the fact that the plaintiff, notwithstanding the accident and her injuries, proceeded with her original plan to have a family. The plaintiff had two children after the MVA and before trial. At trial she had two toddlers whom she alleged she had difficulty caring for.

Her husband, who was called as a witness, supported her evidence in that regard. [ 9 ] The defendants served a single report which was a records review report of orthopedic surgeon Dr. John Hummel. Dr. Hummell was not called to provide expert testimony at trial. [ 10 ] In July 2016, the defendants’ sought an order that the plaintiff obtain a functional capacity evaluation with a kinesiologist. The

application was denied by Master Harper. The defendants obtained other responding reports but, as I have indicated, did not call any evidence at trial. The only defence expert who was hired to examine the plaintiff was Dr. Rehan Dost, a neurologist. The defendants did not call Dr. Dost at trial. [ 11 ] On September 19, 2016, the plaintiff presented a formal offer to settle in the amount of $675,000 plus costs and disbursements at Scale B. [ 12 ] As noted above, on September 20, 2016, the defendants presented a formal offer to settle in the amount of $185,000 new money plus costs.

On September 21, 2016, counsel for the plaintiff responded, advising that the plaintiff would be seeking in excess of $1,500,000 for “pecuniary damages alone” at trial and advising that if the jury verdict exceeded the plaintiff’s offer to settle, the plaintiff would be seeking double costs. [ 13 ] On September 26, 2016, the defendants presented a new formal offer to settle, revoking the previous offer and offering $185,000 old money which included almost $6,000 in

Part 7 benefits. [ 14 ] On October 13, 2016, the plaintiff presented a new formal offer to settle in the amount of $337,500 new money plus costs and disbursements. Position of the Parties [ 15 ] The plaintiff argues that neither of the defendants’ formal offers to settle was reasonable to accept in all of the circumstances. The plaintiff was confident that she had a meritorious claim for substantial damages including loss of future earning capacity. The plaintiff argues that the defendants’ responsive reports supported her claim. The plaintiff argues that the defendants’ rebuttal expert, Ms.

Claudia Walker, alone supported a fairly large claim for costs of future care. [ 16 ] The plaintiff argues that she has incurred tens of thousands of dollars for disbursements and that as a result of the trial, the family is financially devastated, requiring withdrawal of money from her children’s accounts. [ 17 ] The defence argues that the plaintiff went to court attempting to obtain over a million dollar award for a soft tissue injury. The plaintiff took a gamble and lost, and it is this kind of action that is driving insurance rates up.

The defendants offered over five times what the jury awarded and it was a reasonable offer that ought to have been accepted on the date it was delivered. [ 18 ] Both parties agree that the amount to be deducted from the plaintiff’s award of damages, pursuant to s. 83(5) of the Insurance (Vehicle) Act , R.S.B.C. 1996, c. 231, is $5,936.61. Law [ 19 ] Rule 14-1(9) of the Supreme Court Civil Rules , B.C.

Reg. 168/2009, provides that “costs of a proceeding must be awarded to the successful party unless the court otherwise orders.” However, Rule 9-1 provides the court with alternate cost options in circumstances where an offer to settle has been made. Specifically, Rule 9-1(4), (5), and (6) read as follows: Offer may be considered in relation to costs

(4) The court may consider an offer to settle when exercising the court's discretion in relation to costs. Cost options

(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. 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.

Discussion [ 20 ] In deciding whether to exercise the court’s discretion to award the defendants their costs from September 20, 2016 onwards, I may consider the factors described in Rule 9-1(6) above. Was the offer one that ought reasonably to have been accepted? [ 21 ] I am mindful that in the assessment of this factor the court does not take a hindsight view of the evidence: Bailey v. Jang , 2008 BCSC 1372 at para. 24 . [ 22 ] In argument, the defendants relied primarily on Paskall v. Scheithauer , 2014 BCCA 26 .

However, I am of the view that the case before me is distinguishable from that before the Court of Appeal in Paskall . In that matter the defence made an initial offer of $300,000 and then a subsequent offer of approximately $700,000, both of which were rejected by the plaintiff. In its verdict, the jury saw fit to award the plaintiff only $66,000. Additionally, as noted at para. 85: [85] … Counsel, of course, knew that the appellant [plaintiff] had been examined by a doctor retained by the respondent [defendant] and knew that the respondent had not filed a medical report.

This meant that the respondent was content to challenge the appellant’s case by cross-examining the appellant and her witnesses. [ 23 ] The main issue in Paskall was whether the defendant was required to provide the plaintiff with evidence on which she could judge the reasonableness of the offer to settle. The Court of Appeal held that no such requirement exists and rejected the trial judge’s finding that the plaintiff was unable to evaluate the reasonableness of the offer. [ 24 ] In the matter before this court, the plaintiff had a good sense of the evidence available not only to her, but to the defence.

Unlike Paskall , the plaintiff here does not submit that she was unable to assess the reasonableness of the defendants’ offer. Rather, she submits that the evidence expected to be tendered at trial informed her counsel’s conclusion that the neither formal offer provided a genuine incentive to settle and that rejecting either offer would be reasonable.

As stated by counsel for the plaintiff, the plaintiff was simply not intimidated by the single report that the defendants had served. [ 25 ] Although some of the plaintiff’s initial negotiating positions were clearly inflated, and were tactical in nature and in that regard overly optimistic, I agree with the plaintiff that her decision not to accept the offer tendered by the defendants before trial was a reasonable one.

The evidence available to the plaintiff at the time that the settlement offers were rejected included expert reports in respect of past wage loss, loss of future earning capacity, and cost of future care. [ 26 ] Further, given that the plaintiff had medical evidence supporting her claim that she was suffering from chronic pain, I also take into consideration the plaintiff’s assessment of Unger v. Singh , 2000 BCCA 94 , and Derksen v.

Nicholson , 2015 BCSC 1268 , which, she submits, supports an appropriate range for non-pecuniary damages as being between $46,000 and $167,000. [ 27 ] The defence also sought to rely on this court’s decision in Dennis v. Fothergill , 2014 BCSC 452 . Beginning at para. 16, Bruce J. makes the following remarks: [16] The plaintiff argues that when the offer was made it was not apparent that it represented a reasonable compromise of the action. All of the medical evidence supported her claim that the accident caused substantial injuries and consequential losses.

The defendant called little expert evidence that contradicted the plaintiff’s experts. In support of this position, the plaintiff cites Paskall v. Scheithauer , 2012 BCSC 1859 . The offer was substantially less than the outcome supported by the medical evidence. … [26] … While the expert medical evidence to be tendered at trial by the plaintiff supported her claims, and the defendant intended to lead contradictory evidence from only one medical expert, it should have been clear to the plaintiff that her entire claim was heavily dependent upon her credibility.

The medical experts all relied upon the plaintiff’s self-report regarding her past injuries and the injuries suffered after the accident.

Their medical diagnosis and findings regarding the causal connection between her injuries and the accident were almost entirely based on her subjective assessment of pain and the past history she reported. [27] At trial I found there were glaring contradictions in the plaintiff’s evidence and I concluded that she blatantly lied to the medical experts about her past history regarding injuries to her neck, shoulders and back. … [28] An assessment of credibility is a subjective exercise that is ultimately based on the entire body of evidence before the Court.

In most circumstances a plaintiff cannot be expected to know in advance how the Court might assess her credibility in the witness box. However, in this case the plaintiff’s counsel would undoubtedly have explained the risks attendant upon proceeding to trial where the success of the claim is so highly dependent upon the Court’s assessment of credibility. Further, the plaintiff must have been aware that she had misled the medical experts that she knew would be giving evidence at trial on her behalf.

I fail to see how she could have been ignorant of her own medical history and how this history had been misrepresented to the medical experts. [29] In these circumstances, one would expect the plaintiff to be very cognizant of the risks of going to trial.

Given the frailties surrounding the underlying foundation for the opinions of her experts, the fact that there was no serious conflict between the medical experts as to the causal connection between her current symptoms and the accident should not have been a significant factor in the plaintiff’s decision to reject the defendant’s offer of settlement. [ 28 ] Unlike Dennis , this is not a case where the plaintiff was found to have “blatantly lied” and “mislead” medical experts.

Rather, the case at bar is like most cases in which the “plaintiff cannot be expected to know in advance how the Court might assess her credibility in the witness box” (para. 28). [ 29 ] I am content that the formal settlement offer delivered on September 20, 2016 was a genuine offer intended to encourage

settlement; that is to say, it was not a “nuisance offer”. However, given the circumstances discussed above, I agree with the plaintiff that it was not unreasonable to reject the defendants’ formal settlement offer of approximately $180,000. Relationship between the terms of the settlement offered and the final judgment of the court [ 30 ] As previously noted, the jury’s award was significantly less than the defendants’ formal offers to settle -- the defendants initially offered $185,000 new money and the jury awarded the plaintiff $37,800 old money.

On its face, this factor clearly favours denying the plaintiff her costs subsequent to her receipt of the defendants’ first formal offer to settle. [ 31 ] However, as stated by Kelleher J. in Smagh v.

Bumbrah , 2009 BCSC 623 at para. 13 , “[d]ecisions on damages by juries are somewhat more difficult to predict than assessments by judges.” Having regard to what was known to the parties prior to the commencement of this trial, I am not convinced that the plaintiff ought to have anticipated a jury award substantially lower than the defendants’ final offer to settle. [ 32 ] I have taken into consideration this noticeable discrepancy, but I am mindful that this factor is not determinative and that in the circumstances, “the court should be cautious in placing too much weight on this factor” ( Smagh , at para. 14 ).

Relative financial circumstances of the parties [ 33 ] In regards to an assessment of this factor, counsel for the defendants note that in Dennis , Bruce J. affirms that: [34] … in Wepryk v.

Juraschka , 2013 BCSC 804 , Ehrcke J. held that the insurer’s resources should not be a factor in the Court’s determination of costs where there is no evidence the insurer used its “financial resources in a manner that distorted the litigation process, creating an unfair advantage or leading to unnecessary costs” (at para. 15). … [ 34 ] Having considered the decisions in Dennis and Wepryk , I am more persuaded by the analysis in Cairns v. Gill , 2011 BCSC 420 , a costs application following a personal injury trial in respect of a motor vehicle collision.

Beginning at para. 58, Madam Justice Arnold-Bailey states: [58] The above analysis of these factors [Rule 9-1(6)] informs my decision in relation to this issue.

A further consideration, that the defendants' anticipated costs far exceed the plaintiff's 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. [60] It is clear from the rules and the jurisprudence that costs consequences are to guide counsel in litigation decisions.

The object of the Rules is, “to secure the just, speedy and inexpensive determination of every proceeding on its merits.” This object is to be conducted, as far as is practicable, with regard to proportionality. While this object is frustrated to some extent by a claim worth $851 proceeding to its conclusion at a Supreme Court jury trial where it was more appropriate for determination in Provincial Court, the object and proportionality principle do not appear to accord with the potential cost of litigation in this case.

The bill of costs of the defendants is expected to exceed $16,000. [61] I note that the Court of Appeal in Giles recognized when dealing with the issue of double costs that “all litigation comes with a degree of risk,” and that, “when faced with settlement offers, plaintiffs must carefully consider their positions.” However, the court also indicated that plaintiffs, “should not to be cowed into accepting an unreasonable offer out of fear of being penalized with double costs if they are unable to 'beat' that offer.” These considerations also appear relevant in these circumstances. … [65] … To require her to pay all or some of the defendants' costs after the date of service of the offer to settle, which at the time was an unreasonably low offer, would be excessive and unjust.

It would not be in keeping with the nature of the offer, the relative financial circumstances of the parties, the principle of proportionality, and the need to avoid decisions that inappropriately discourage plaintiffs from pursuing valid claims. [ 35 ] Further, as noted by Adair J. in Currie v.

McKinnon , 2012 BCSC 1165 at para. 20 , “[w]hile the purpose of … [Rule 9-1] is to encourage reasonable settlements, parties should not be unduly deterred from bringing meritorious, but uncertain, claims because of the fear of a punishing costs order.” [ 36 ] It is my view that all of the financial evidence at trial supports the fact that the plaintiff was a person of modest means.

Having already concluded that the settlement offer was not one which ought to have reasonably been accepted, it is evident that an order requiring the plaintiff to either pay the well-funded defendants’ costs, or in the alternative denying the plaintiff her costs, from September 20, 2016 onwards, would result in a pyrrhic victory and could have the effect of discouraging plaintiffs from pursuing valid claims. [ 37 ] As a result, although not determinative, the relative financial circumstances of the plaintiff and the defendant insurer are a consideration that I have taken into account.

Conclusion [ 38 ] I am not persuaded that in these circumstances the court should exercise the discretion afforded to it under Rule 9-1(4) and (5). Having considered all of the relevant factors, I find that the plaintiff is entitled to her costs at Scale B and disbursements, including the cost of this application. The defendants’ application is dismissed.

“J. A. Power, J.” The Honourable Madam Justice J. A. Power