Senger v. Graham, 2018 BCSC 1446

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Senger v. Graham, 2018 BCSC 1446 Date: 20180608 Docket: M154403 Registry: Vancouver Between: Jamie Rose Senger Plaintiff And Darren Patrick Graham Defendant Before: The Honourable Madam Justice Murray Oral Reasons for JudgmentRe Application for Double CostsIn Chambers Counsel for the Plaintiff: S.N. CollinsCounsel for the Defendant: K.K. DhaliwalPlace and Date of Hearing: Vancouver, B.C. May 17, 2018Place and Date of Judgment: Vancouver, B.C.

June 8, 2018 [1] THE COURT: The plaintiff seeks double costs from the time of delivery of an offer to settle her motor vehicle personal injurytrial.

The defendant argues that the offer was unclear and in any event was an offer that they could not have reasonably accepted. [2] In determining whether the defendant should pay double costs from the time of the settlement offer, the court must considertwo issues: first, whether the offer was clear; and secondly, whether the offer should reasonably have been accepted. [3] The applicable portion of Rule 9-1(5) allows the court to award double costs of all or some of the steps taken in a proceedingafter the date of delivery or service of the offer to settle. [4] Pursuant to Rule 9-1(6) the factors to be considered in making such an award are:

a) whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle wasdelivered 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 party; and

d) any other factor the court considers appropriate. [5] The purpose of the rules governing double costs is set out in Hartshorne v. Hartshorne, 2011 BCCA 29, at paras. 25 and 27 asfollows: [25] An award of double costs is a punitive measure against a litigant for that party’s failure, in all of the circumstances, to haveaccepted an offer to settle that should have been accepted.

Litigants are to be reminded that costs rules are in place "to encourage theearly settlement of disputes by rewarding the party who makes a reasonable settlement offer and penalizing the party who declines toaccept 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), 1995 1537 (BC CA), (BC CA), 2 B.C.L.R. (3d) 201 (C.A.), Radke v.

Parry,2008 BCSC 1397. … [27] The first factor – whether the offer to settle was one that ought reasonably to have been accepted – is not determined by referenceto 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 . [ 6 ] As stated above, the first factor, whether the offer ought to have been accepted, is not to be considered with the benefit of hindsight or with regard to the award that was ultimately made. The inquiry involves both an objective and subjective component.

The court is obliged to consider the matter from the perspective of the person receiving the offer and may take into consideration the reasons why that party declined to accept the offer. The court must then consider whether those reasons are objectively reasonable. The party receiving the offer is required to fairly and objectively assess the evidence to be adduced at trial and make a reasoned decision of the relative merits of the claim or defence having in mind a certain amount of litigation risk.

An offer to settle must be clear and unambiguous, meaning that the offeree must be able to determine or readily ascertain precisely what is offered. Background [ 7 ] This matter proceeded to trial December 11, 2017 for five days.

On July 26, 2017, counsel for the plaintiff made an offer to settle on the following terms: 1) the defendant's policy limit of $200,000 plus costs and disbursements be paid to the plaintiff; 2) ICBC to agree that the plaintiff could access the uninsured driver fund; 3) the parties to agree that ICBC may claim the $200,000 paid to the plaintiff from the defendant's policy as an UMP deduction; 4) the parties will set an early date for arbitration; and 5) the offer was open until August 15, 2017. [ 8 ] I emphasize the reference to uninsured driver fund because that is an issue raised by the defence. [ 9 ] On July 31, 2017, counsel for the plaintiff responded in writing to defendant's counsel assuring them that the offer was serious and clarifying that the reference to "uninsured driver fund" was actually a reference to the underinsured motorist protection, which is known as “UMP.” [ 10 ] At the time of the offer the defendant and ICBC had the following evidence: 1) the plaintiff's examination for discovery in which she testified that she was working three to four days per week as she was physically unable to work full time due to injuries suffered in the motor vehicle accident; 2) reports from two occupational therapists retained by ICBC dated November 4, 2016; February 11, 2017; and May 15, 2017, that stated that the plaintiff's symptoms had not changed since the initial assessment in November 2016, that she was unable to work full time because of her injuries and recommended a substantial amount of ongoing care; and 3) reports of 22 days of surveillance of the plaintiff by private investigators hired by ICBC.

Video surveillance was conducted on 11 of those days. None of this surveillance was introduced at trial, so it can be reasonably presumed that it did not uncover anything inconsistent with the symptoms reported by the plaintiff to the occupational therapist. [ 11 ] The plaintiff argues that based on that information it should have been clear to the defendant that the plaintiff's case would certainly exceed $200,000 and as such, they should have accepted the offer. [ 12 ] The defendant counters that the plaintiff's offer was unclear in two ways.

First, it referenced the uninsured driver fund, rather than the UMP, two different types of policies. Second, counsel for the defendant argues that the offer was made to them but they were on a limited retainer with ICBC for $200,000, the limits of the defendant's insurance. As such they say they could not agree to the plaintiff being permitted to go to UMP for the remainder, only the ICBC adjuster could agree to that.

Put another way, the defendant argues that he was not in a position to accept a term that would bind ICBC to a policy to which he was not a party. [ 13 ] I do not accept either of these arguments of the defendant. While counsel for the plaintiff made an error by referencing the uninsured driver fund rather than UMP, he referenced UMP in the next paragraph of his settlement offer. Defence counsel knew that the defendant was an underinsured motorist, not an uninsured motorist. Further, plaintiff's counsel clarified the terms in his July 31st reply.

While I accept that offers to settle must be clear and unambiguous, in all of the circumstances defence counsel could not have believed that anything other than UMP was being referenced. I therefore find that the offer was clear. [ 14 ] I turn now to the second issue, whether the offer should reasonably have been accepted. With regards to counsel for the defendant's argument that they could not accept the offer as they were on a limited retainer, the ICBC adjuster for the defendant's limited retainer was the same adjuster as for the UMP.

It defies logic to accept that defence counsel could not have worked with the adjuster to get the approval sought. In fact, that is precisely what happened just before the trial began- ICBC, defendant's counsel and plaintiff's counsel agreed as to how the funds would be accessed. [ 15 ] That leaves the defendant's argument that the offer could not reasonably have been accepted at the time it was made. As stated above, the offer was made July 26, 2017, and was open until August 15, 2017, one month before the deadline for service of expert reports.

The occupational therapist reports dealt with treatment, not causation or long-term prognosis. At the time of her examination for discovery the plaintiff had had limited treatment and was working in a field known to cause physical issues. As a result causation was in issue until the expert reports were received. [ 16 ] The defendants received the plaintiff's expert opinion evidence between September 14 and 25, 2017. They received their expert,

Dr. Thompson's medicolegal report on August 30, 2017, over two weeks after the expiration of the offer. [ 17 ] I accept that the defendant was missing information that was essential to their ability to evaluate the offer. Causation and long-term prognosis were key to assessing the value of the claim. Without the doctor's reports, liability was, to the defendants, very much in issue. [ 18 ] That being the case, I am satisfied that the defendant could not have reasonably accepted the offer at the time it was made. [ 19 ] Accordingly I am of the view that the plaintiff is not entitled to double costs. She is however entitled to costs throughout. “The Honourable Madam Justice Murray”