Ma v. Haniak, 2018 BCSC 1000

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Ma v. Haniak, 2018 BCSC 1000 Date: 20180618 Docket: M122025 Registry: New Westminster Between: Yin Yin Ma Plaintiff And Maria Haniak, William Haniak and Terry Hales Defendants - and - Docket: M133802 Registry: New Westminster Between: Yin Yin Ma Plaintiff And James R. Vansanten Defendant - and - Docket: M132280 Registry: New Westminster Between: Hla Shwe-Haung Plaintiff And Bryan Terry Hales and James R. Vansanten Defendants - and - Docket: M132800 Registry: New Westminster Between: Hla Din Plaintiff And James R. Vansanten

Defendant Before: The Honourable Mr. Justice Armstrong Reasons for Judgment Regarding Costs The Plaintiff Yin Yin Ma appearing in person: Y. Ma The Plaintiff Hla (Huang) Maung appearing in person: H. Maung Counsel for the defendants Maria Haniak and William Haniak and Terry Hales and James R. Vansanten: R.W. Morasiewicz and J.R. Bradbury Date of Written Submissions: October 24, 2017 and March 13, 2018 Place and Date of Judgment: New Westminster, B.C.

June 18, 2018 Introduction [ 1 ] These reasons address the disposition of costs claims by the parties following a 13 day trial of this personal injury damages assessment. The trial reasons are indexed at Ma. v. Haniak , 2017 BCSC 549 . [ 2 ] The claims related to three car accidents between 2007 and 2009. The plaintiff Yin Yin Ma (Ms. Ma) was involved in all three collisions and her brother, Hla Maung (Mr. Maung), was a passenger with her at the time of the second and third. Liability for the accidents was admitted by the defendants.

In their claims for damages both plaintiffs contended they were incapacitated and permanently affected by their injuries. [ 3 ] The trial decision is under appeal. This application concerns the plaintiffs’ claims for costs and the defendant’s claims for: (

i) the costs of defending the actions; (ii) specific deductions from past income loss claims; and (iii) special costs limited to post trial events. [ 4 ] This overarching issue in the trial was the reliability and credibility of the plaintiffs. The defendants argued that the plaintiffs’ evidence concerning the nature and extent of their injuries and losses was exaggerated and not supported by objective evidence.

The defendants highlight the reasons wherein the plaintiffs were found lacking in credibility and reliability resulting in an award of damages well below the amounts claimed by them. [ 5 ] In post trial proceedings on the question of costs, the plaintiffs have advanced several propositions impugning the actions of defence counsel, ICBC and the Court. Background [ 6 ] The parties were born in Burma and immigrated to Canada in 1990. Ms. Ma is 52 years of age. She contended she received a university degree in Burma prior to immigrating to Canada. She is fluent in English. [ 7 ] Mr. Maung is 58.

Unlike his sister, he is not fluent in English and relied on a Burmese interpreter throughout the trial and on this application. The Accidents [ 8 ] Ms. Ma was alone in her car when the first accident (MVA #1) occurred in September 2007. In the second accident in May 2009 (MVA #2), both Ms. Ma and Mr. Maung were in their vehicle when it was struck from the rear. The parties were also together in the third accident, a parking lot collision, on December 16, 2009 (MVA #3). Evidence [ 9 ] At trial, Ms. Ma tendered the medical opinions of other experts including: Dr. William Craig, Physiatrist, Dr.

Peter Joy, Psychologist, Dr. M. Charkhsaz, Ms. Ma’s family doctor, Russell McNeil, an Occupational Therapist, functional capacity evaluator and cost of future care expert, and Kevin Turnbull, an Economist. [ 10 ] The reports of all of the medical experts testifying for the plaintiffs were prepared between February 2010 and May 5, 2011 with the exception of a family doctor’s report from November 2015. Other than these opinions, the plaintiffs provided no updated reports. [ 11 ] The defendants relied on medical opinions and other experts including: • Reports from Dr.

Marc Boyle, Orthopedic Surgeon, from February 3, 2010 and with an addendum from December 4, 2014 and

rebuttal report dated December 13, 2015; • Testimony from Rachel Richards, Physiotherapist, who examined Ms. Ma between summer 2009 and February 2010; • Reports from Dr. R. Lamba, Psychiatrist, from May 6, 2011, and addendums from July 11, 2011, August 21, 2011 and December 31, 2015; • A report from Dr. Dennis Magrega, Registered Psychologist, vocational assessment from August 2011; • A report from Wayne Enright, Occupational Therapist, report from October 2012 dealing with the plaintiff’s functional abilities and limitations; and • A loss of earnings analysis report from December 2015. Ms. Ma’s Claims [ 12 ] Ms.

Ma’s claims were based on her contention that the accident caused her to suffer chronic pain and fibromyalgia with permanent and disabling symptoms. [ 13 ] Ms. Ma was seeking $175,000 for non-pecuniary damages; $243,000 in past wage loss; $616,000 for impaired earning capacity; $409,000 in future care costs; $20,000 in housekeeping expenses; and special damages of $12,000. [ 14 ] Ms. Ma’s income between 1997 and 2010 as reported in her tax returns was minimal. Between 1997 and 2010 the bulk of Ms. Ma’s income (except for 2008) was from social assistance. [ 15 ] Based in part on these findings I concluded Ms.

Ma was not entitled to compensation for future income loss. Her claim for future care costs was dismissed because the evidence did not support her claims for the services and assistance she requested. Mr. Maung’s Claims [ 16 ] Mr. Maung claimed $100,000 for non-pecuniary damages; $97,127 for past wage loss; $100,524 for future wage loss; $20,000 for housekeeping expenses; $1,320 for special damages; and $109,800 for future care costs. [ 17 ] Mr. Maung had earned almost no income from 1990 to 2010.

He survived largely on government assistance after arriving in Canada. [ 18 ] He received an award for non-pecuniary damages and a small amount for past wage loss. His other claims were dismissed because they were not proven. The Settlement Offers: [ 19 ] The defence made several settlement offers during the litigation when both plaintiffs were represented by counsel; counsel withdrew from the case July 5, 2012. [ 20 ] Ms. Ma was offered a settlement of $125,000 on September 21, 2011.

On August 30, 2012, that offer was reduced to $35,000 and on November 20, 2014, the defence increased their offer to settle her claims to $75,000. [ 21 ] On August 30, 2012, Mr. Maung was offered $25,000 to settle his claim and on November 20, 2014 that offer was increased to $60,000. [ 22 ] On August 23, 2011, the defendant served copies of video surveillance of Ms. Ma. The images from this surveillance were significant in some of the Court’s findings. [ 23 ] In their 2014 settlement offers to Ms. Ma and Mr.

Maung the defendants included warnings that they would seek recovery of their costs after the date of the offer if the offer was not accepted before the trial. The Judgment [ 24 ] In the result, I found that Ms. Ma had not proven she suffered ongoing chronic pain syndrome or fibromyalgia caused by the three MVAs.

I concluded that her claims of ongoing extreme pain and discomfort throughout her body which were completely and permanently disabling her were animated by a factitious disorder or, that she is malingering and were not caused by the accidents. [ 25 ] She was awarded non-pecuniary damages of $35,000; past wage loss of $10,300 (subject to a deduction of the government assistance Ms. Ma received at that time). She was also awarded special damages of $3,400. [ 26 ] I was satisfied that Mr. Maung had suffered soft tissue injuries to his neck from both MVA #2 and MVA #3 and these injuries would have resolved.

Similarly, I was satisfied that his myofascial strains to the low back could have been managed by strengthening and stretching exercises. [ 27 ] I concluded that Mr. Maung failed to prove he suffered chronic pain syndrome, fibromyalgia or an adjustment disorder as a result of his accidents. The evidence demonstrated that, more likely than not he suffered from factitious disorder or has been malingering

in the hopes of receiving several hundreds of thousands of dollars in damages. [ 28 ] He was awarded non-pecuniary damages of $25,000; special damages of $1320; and past wage loss of $2000. His other claims including future care costs and future income loss were dismissed. The Applicable Law on Costs [ 29 ] The general rule with respect to costs is that they follow the event unless there are reasons to depart from this standard. [ 30 ] The Supreme Court Civil Rules [the Rules ], provide the framework in which costs are to be ordered. The Rules relevant to this case are as follows: Costs to follow event

(9) Subject to subrule (12), costs of a proceeding must be awarded to the successful party unless the court otherwise orders. Set-off of costs

(17) If a party entitled to receive costs is liable to pay costs to another party, a registrar may assess the costs the party is liable to pay and may adjust them by way of deduction or set-off or may delay the allowance of the costs the party is entitled to receive until the party has paid or tendered the costs the party is liable to pay. [ 31 ] In Loft v. Nat , 2014 BCCA 108 [ Loft ], the Court described the possible reasons for denying a part of its costs: [49] The fact that a party has been successful at trial does not however necessarily mean that the trial judge must award costs in its favour.

The rule empowers the court to otherwise order. The court may make a contrary order for many reasons. One example is misconduct in the course of the litigation: Brown v. Lowe , 2002 BCCA 7 , 97 B.C.L.R. (3d) 246. Another is a failure to accept an offer to settle under Rule 9-1. A third arises when the court rules against the successful party on one or more issues that took a discrete amount of time at trial. In such a case the judge may award costs in respect to those issues to the other party under Rule 14-1(15): Lee v. Jarvie , 2013 BCCA 515 .

Such an order is not a regular part of litigation and should be confined to relatively rare cases : Sutherland v. Canada (Attorney General), 2008 BCCA 27 , 77 B.C.L.R. (4th) 142 ; Lewis v. Lehigh Northwest Cement Limited, 2009 BCCA 424 , 97 B.C.L.R. (4th) 256. Whether a judge will order otherwise in any particular case will be dependent upon the circumstances of that individual action. [ 32 ] In C.P. v. RBC Life Insurance Co., 2015 BCCA 30 , Mr.

Justice Goepel summarized the meaning of “successful party” and when the court may depart from the usual rule, referring to his earlier decision in Loft : [70] Unless the court otherwise orders, costs in a proceeding must be awarded to the successful party: R. 14 - 1(9) . The successful party is the plaintiff who establishes liability under a cause of action and obtains a remedy, or a defendant who obtains a dismissal of the plaintiff’s case: Loft v. Nat , 2014 BCCA 108 at para. 46 . [ 33 ] An award of costs is a discretionary remedy for trial judges: see Loft at para. 50 .

This discretion must be exercised in a principled way and without reference to pre-litigation conduct: see Rossmo v. Vancouver (City) Police Board , 2003 BCCA 677 at para. 59 . [ 34 ] When plaintiffs in personal injury actions mislead the court through exaggeration or untruths about their injuries, the court can exercise discretion to punish this unacceptable behaviour by denying costs or reducing the level of costs that might be awarded to the otherwise successful party: see Noyes v. Stoffregen , [1995] B.C.J. No. 73 (S.C.) [ Noyes ] ; LeClair v.

Mibrella Inc. , 2011 BCSC 533 [ LeClair ] at para. 10 ; and Medeiros v. Vuong , 2001 BCSC 326 at para. 12 . [ 35 ] Costs are not used to sanction parties whose evidence is simply exaggerated or given in error: see LeClair at para. 10 . [ 36 ] Rule 9-1(5) sets out the cost options available in a proceeding in which an offer to settle has been made and R. 9-1(6) sets out considerations the court may take into account where offers have been made. Those Rules are as follows: 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. [ 37 ] The considerations informing the court about whether double costs are appropriate were succinctly summarized in Gichuru v. York, 2012 BCSC 1385 , as follows: [25] An award of double costs is “a punitive measure against a litigant for that party’s failure, in all of the circumstances, to have accepted an offer to settle that should have been accepted”: Hartshorne v. Hartshorne , 2011 BCCA 29 , at para. 25 [ Hartshorne ]. [26] On the question of whether the offer was one which the plaintiff ought reasonably to have accepted, the factors to consider are: (

a) the timing of the offer; (

b) whether the offer is related to the claim; (

c) how easily the offer could be evaluated; and, (

d) whether a rationale was provided for the offer: Hartshorne , at para. 27 . [27] The court is to assess the reasonableness of the rejection of the offer without reference to the ultimate decision after trial: Cairns v. Gill , 2011 BCSC 420 , at para. 18 . [28] Applications for double costs have been dismissed where the offer in question has “provided little incentive for the plaintiff to settle” or where the offer fell short of providing “a genuine incentive to settle”: Oh v. Usher, 2010 BCSC 122 , at para. 10 ; and Brooks- Martin v.

Martin , 2011 BCSC 497 , at para. 38 . [29] The relationship between the offer and the final judgment of the court is “an independent factor to be considered in deciding whether a double costs award should be made”: Hartshorne , at para. 30 . The Plaintiffs’ Position [ 38 ] The plaintiffs made submissions on the question of costs when this application was first argued on January 17, 2018 without providing affidavit evidence concerning several factual assertions they made.

Absent evidence from them on these points I invited them to support their arguments with affidavit evidence important to the arguments they relied on at the time of submissions.

They provided a jointly sworn 147 paragraph affidavit filed March 13, 2018, which chronicled the factual basis on which their submissions had been made. [ 39 ] Their submissions and evidence included the following: a. the subject auto accidents caused each plaintiff significant injuries resulting in ongoing chronic pain and permanent disability and they had been truthful throughout the trial; b. the reasons for judgment contained many errors some of which resulted from confusion engendered by defence counsel’s submissions; c. Ms.

Ma’s injuries were treated by three doctors and a physiotherapist at various walk-in clinics; d. Ms. Ma was assessed by an independent psychologist who provided a guarded prognosis; e. Mr. Maung suffered chronic injuries from accidents number two and three and was treated by two physicians. It was opined that he had a poor prognosis; f. Mr. Maung said he offered to settle his claim for damages for $60,000 in response to the defendant’s offer in that amount but was told he could not settle his claim independently of Ms. Ma’s claim.

It seems both plaintiffs erroneously believed that settlement of one claim could not occur without settlement of the other; g. The parties’ previous counsel, Carol Lacroix commenced proceedings for them and continued to act for them until the examinations for discovery, document discovery made and medical reports had been obtained; h. Ms. LaCroix had warned Ms. Ma there was risk she could be held liable for the defence costs in the most unlikely case; i. Both plaintiffs allege that Ms. Lacroix informed them she was “forced to withdraw” as counsel.

Apparently no reason was given or at least not explained in their affidavit material for her forced withdrawal; j. Before Ms. Lacroix withdrew as counsel, and in anticipation of her withdrawal, the plaintiffs contacted between 30 and 40 lawyers none of whom would act on their behalf; k. The plaintiffs contend that the defendant’s lawyer told them that they would not be able to find another lawyer to act for them; l. The plaintiffs allege defendants committed the “crime of obstruction of justice”. They argue the defendants succeeded in a willful attempt to obstruct justice.

In the result, the plaintiffs unwillingly and unfortunately attended trial without legal assistance from a lawyer; m. An order made by Mr. Justice Saunders dated November 13, 2012, directed trial of the plaintiffs’ claims at the same time. They contend they did not understand that the order for simultaneous trials would not prevent one of them from settling their claims while the

other proceeded to trial independently of their sibling; n. The plaintiffs’ father passed away November 17, 2014, in advance of a January 5, 2015 scheduled trial. Both were grief stricken and Ms. Ma requested an adjournment of the trial but Mr. Maung wished to proceed to trial in January; o. On January 5, 2015 their trials were adjourned; p. In November 2014, there was a meeting between the parties and an ICBC adjuster. Ms. Ma was claiming damages of $1.2 million; she said the defendants offered $500,000 to settle her claim. She rejected that settlement proposal; q. Mr.

Maung told ICBC he would settle his claim for $300,000. Later, he reduced his settlement proposal to $200,000. The defence responded with a settlement offer of $60,000 which was rejected by him; r. Later, Mr. Maung said he wanted to accept $60,000 but believed it was not possible to settle his claim separately from his sister’s. Ms. Ma persuaded Mr. Maung to go to trial because she believed if he settled his claim she would be forced to settle her claim for $75,000; s. Although Mr. Maung had wanted to proceed to trial in January 2015, the trial was adjourned because of Ms.

Ma’s overwhelming grief at the death of her parent. Mr. Maung wanted to use the proceeds from his settlement to pay his father’s funeral expenses. Mr. Justice Blok refused his wish to continue to trial without his sister; t. The plaintiffs say it was unfair for the defendants to obtain an order to have the trials heard together because it compromised their ability to settle. I note Saunders J.’s order that the trials be heard together was made by consent of both plaintiffs; u. The plaintiffs allege misconduct on the part of defence counsel during the trial.

They said counsel “made twists and turns and distorted things” causing the court to be confused. This would not have happened if they had been represented by counsel and the judgment would not have contained the many errors they say were made; v. When represented by counsel, the defendants offered to settle Ms. Ma’s claim for $125,000. She rejected that offer and said her counsel informed her “it was only in worst-case scenario, the plaintiffs had to pay ICBC defence lawyers and costs”; w.

The plaintiff’s repeated assertions throughout their affidavit and submissions were, that they had not “been allowed to obtain counsel” and that their rights “under the Charter of Rights and Freedoms” [ Charter ] were clearly breached. They say this was obstruction of justice and that the medical experts were part of a conspiracy against them. They contend ICBC used covert agents to obstruct justice; x. The plaintiffs contend that the deaths of their parents in and around important events in the litigation [the trial and release of judgment] were part of a conspiracy to block their access to justice.

They alluded to the timing of the litigation and the deaths of their parents as part of the conspiracy against them and said it was not coincidental that their parents died in and around important events. y. The plaintiffs contend that the defendant’s lawyers willfully destroyed evidence to mislead the court. In their appeal preparations they have contended that defence counsel deliberately destroyed pages of trial transcripts that has prevented them from a fulsome preparation of their appeal; and z.

The plaintiffs argue that special costs should be denied to the defendants and, conversely they should be awarded special costs. [ 40 ] On the question of the plaintiff’s inability to retain counsel for the trial, I note this issue was discussed before the commencement of the trial. The court said: Now, I have noted your concern about not having – – not being represented by counsel here today, but I understand that it’s been years since these actions were commenced.

And – – and after – – after counsel withdrew, your original counsel withdrew you have not been able to find a lawyer to take this case for you. … I didn’t understand you were asking for an – – for any further adjournment of the trial, but I may have a – – may have cut you off before you got to that point do you have a sense that you were asking to adjourn the trial today? MS. Ma No, I – – both my brother and I, we don’t like to adjourn the trial… Ms. Ma Anymore [ 41 ] It was abundantly clear to the court that the plaintiffs did not want to adjourn this trial for the purposes of obtaining counsel.

They had contacted dozens of lawyers in the years prior to February 2016 and were unable to retain anyone to represent their interests in this trial and they wanted to press on without further delay. [ 42 ] Although they complained that ICBC had used covert agents to impair their ability to retain counsel, there was no evidence of any steps or measures taken by the defendants, ICBC, or defence counsel to influence, in any way, any lawyers from accepting the plaintiff’s instructions to represent them at the trial. [ 43 ] Further, there was no evidence presented by the plaintiffs to support the allegation that there had been a “crime of obstruction of justice” to impede the administration of justice or prevent them from having a fair trial of their claim for damages in this case.

Although the plaintiffs referred to the Charter of Rights and Freedoms guaranteeing Canadian citizens basic human rights and “the right to fair trial”, no authority was given to the court that would permit the invocation of the Charter as an instrument obliging the state or members of the Law Society to represent individuals involved in personal injury litigation. [ 44 ] It was clear to me that the plaintiffs were asserting that defence counsel had “deliberately deleting the trial transcripts… (was)

the same as willfully destroying the evidence of the trial witness…”. On this point, the plaintiff’s submissions and affidavit evidence is a serious attack on the professional behaviour and reputations of defence counsel, the behaviour of ICBC and the Court. [ 45 ] I am satisfied that the plaintiffs’ claims were nothing less than deliberate and baseless speculation regarding the activity and behaviour of individuals involved in the automobile insurance scheme, including defence counsel, and others. These claims are wholly unfounded.

Costs [ 46 ] Both plaintiffs seek their costs for the entirety of the litigation until judgment in accordance with the general rule. The defendants were liable for all three collisions and each plaintiff recovered judgment in amounts above the Small Claims jurisdiction of the Provincial Court. [ 47 ] The defendants contend that the plaintiffs’ claims for costs from the filing of the notice of civil claim until the first offer should be refused because of the plaintiffs’ lack of credibility and reliability and deliberate attempts to mislead the court.

In addition, the defendant’s claim they should be awarded costs from September 21, 2011 (the dates of their first offers) based on the discrepancy between the amounts offered and the ultimate judgment amounts. Last, the defendants seek special costs based on the plaintiff’s behaviour stemming from their egregious and preposterous allegations made since judgment was granted.

Costs From the date of the Notice of Civil Claim to September 21, 2011 [ 48 ] The defendants contend that neither plaintiff should recover any costs due to their deliberate conduct in deceiving the court by way of exaggeration or outright untruths concerning the nature and extent of their injuries. Their mendacity went to the heart of the litigation process and the plaintiffs should be rebuked for their overreaching and unproven claims. [ 49 ] The defendants contend that both plaintiffs’ disregard for truth in this proceeding disentitles them to the usual order of costs following their success.

The court’s findings of fact, as set out in Appendix “A” and Appendix “B” to the defence submissions captures the court’s view that both plaintiffs engaged in a conscious attempt to exaggerate or feign symptoms and exhibited a fictitious disorder or actual malingering. [ 50 ] There has been intentional or deliberate misleading information given to the courts and some of their treating doctors; this behaviour will normally trigger denial of costs to the otherwise successful party: see Noyes at paras. 79-81. [ 51 ] The plaintiff’s deny their evidence was untruthful and contend that the court had been confused by defence counsel in reaching its conclusions.

Questions concerning the court’s findings of fact in the reasons must be addressed in their appeal; they will not be revisited on this application. [ 52 ] I have concluded that Ms. Ma’s behaviour in advancing her claim was deliberate and substantially more egregious than Mr. Maung’s behaviour. She endeavoured to manipulate professional witnesses; she was repeatedly contradicted in cross-examination; she was untruthful; and she was cunning in her effort to deceive the court. I am satisfied that Ms.

Ma’s behaviour falls into the category, described by Brenner J. as “the most extreme of cases where the court is satisfied that a plaintiff has attempted to perpetrate a fraud on the court…”: see Noyes at para. 80. [ 53 ] In the result, Ms. Ma will not recover costs from commencement date of this litigation to the offer dates. [ 54 ] In the circumstances, although I find Mr. Maung’s behaviour to be exaggerated and that he feigned some symptoms, his behaviours do not rise to the same level as Ms. Ma’s. Although there should be some rebuke of his behaviour, I accept because he was encouraged by Ms.

Ma in his presentation and was patently unsophisticated with litigation proceedings; I exercise my discretion to allow Mr. Maung to recover some but not all of his pre-offer costs. [ 55 ] Mr. Justice Brenner observed in Noyes that some exaggeration it is not uncommon when individuals are focused on their injuries and the resulting impacts. See also: LeClair at para. 10 (vi). In this case, Mr. Maung was focused on his injuries and heavily influenced by his sister.

He struck me as a somewhat unsophisticated person and, although his behaviour was more problematic and should not be countenanced, it does not rise to the level disentitling him to costs up to the date of November 2014. [ 56 ] Mr. Maung will recover 70% of his costs and 100% of his disbursements until November 20, 2014. He exceeded the amount offered on August 30, 2012 and should not be deprived of his costs prior to November 20, 2014 subject to my conclusions related to the settlement offers.

Costs from November 20, 2014 to Judgment [ 57 ] Next, the defendants contend that the plaintiffs unreasonably failed to accept the defence settlement offers. [ 58 ] Ms. Ma was offered $125,000 on September 21, 2011 and the defence seeks to recover costs after that date. Alternatively they seek costs from November 20, 2014 following their settlement offer of $75,000 for the same reason. [ 59 ] The first offer to Mr. Maung was made August 30, 2012, was for damages of $25,000. His actual recovery at trial exceeded that amount. [ 60 ] During argument, the defence conceded that no deduction should be made from Mr.

Maung’s income loss claim. Accordingly, he was entitled to recover $28,320. Court ordered interest must be added to this sum based on the past wage loss and special damages

claim. [ 61 ] The defendants argue that by September 2011, the plaintiffs were both equipped with all of the medical opinions that they relied on at trial and the medical opinions of the defence doctors. Thus, from September 2011 until the conclusion of the trial, Ms. Ma unreasonably failed to accept the defence settlement offer of $125,000 and the defendants should recover their costs. [ 62 ] The defendants argue Mr.

Maung unreasonably rejected the defendant’s August 30, 2012 offer and later, their November 20, 2014 offer. [ 63 ] For the reasons that follow, I find that the defendants are entitled to their costs from November 20, 2014, to the conclusion of the trial against both plaintiffs. [ 64 ] It is well-understood that the Rules are intended to encourage early settlement of disputes by rewarding parties who accept and make reasonable settlement offers while penalizing unreasonable refusals to accept offers: see Hartshorne v.

Hartshorne , 2011 BCCA 29 at para. 25 . [ 65 ] The factors set out in R. 9-1(6) that warrant a finding in favour of the defendants in this case are as follows: Should the parties have accepted the defendant’s settlement offers Mr. Maung a. Mr. Maung said he had very little contact with the lawyer retained by Ms. Ma for him and he felt that he was disadvantaged by attending trial without representation. He said he tried hard to obtain a lawyer but was unsuccessful. Overall, he believes the process was unfair. b.

He contended that he wanted to accept the defendant’s $60,000 offer but was prevented because he could not settle his case without settlement of Ms. Ma’s action. I infer from this submission he believes he should be forgiven cost consequences because he did not accept this offer which he genuinely would have accepted but for the circumstances. c. He claimed he had no experience dealing with the courts or with the law and believes if costs are awarded he will not be able to pay them because he is currently on welfare and is not working. d. Overall, I do not accept Mr.

Maung’s explanation that he wanted to accept $60,000 and settlement of his claims. e. First, the timing of the second offer was more than 16 months prior to commencement of the trial. Immediately before the trial, Mr. Maung asserted to defence counsel that he would settle for $300,000. He did not suggest at that time he would accept $60,000 nor is there any evidence that he was prepared to accept $60,000 at the time. I am satisfied Mr. Maung had ample time to consider the offer and the implications to him of rejecting the proposal.

Although he had been unable to find counsel to represent him at the trial, I am satisfied that with a modest effort he could have obtained some advice on the offer alone. f. He had been informed by Ms. LaCroix that, in the worst-case scenario, he could be called upon to pay the defendant’s costs. g. Next, when the second offer was made, Mr. Maung had virtually all of the medical evidence in support of his claim and against his claim. The defendants’ offer was clearly directed toward a compromise of his claim and could have been evaluated with very little effort.

He had proposed a settlement of $300,000 without the advice of counsel and, in my view, could have applied whatever analysis he used to support his proposal to evaluate the defendant’s $60,000 offer. h. Although I accept that Mr. Maung had limited skills, I conclude that he would have understood that the settlement proposal was based on the defendants’ risk analysis basis and did not correspond with any specific claims he was making. He was aware that his entitlement to costs was at risk if judgment was less than the defendant’s offer. i. Other than Mr.

Maung’s complaint concerning his inability to accept the offer independently of Ms. Ma’s action, he did not offer any reasons why he had not accepted the defendant’s $60,000 offer to settle. j. The offer was open for acceptance by him until 4 p.m. on the day before trial began. The offer was not contingent on settlement of Ms. Ma’s claim and he did not explain why he did not notify defence counsel up to and including February 14, 2016 except to say his sister pressed him to reject the offer because she did not want to accept the offer made to her. It seems that Ms. Ma informed Mr.

Maung, erroneously, that she would have been forced to settle her claim for the amount offered by the defendants if he accepted $60,000. k. The defendants’ November 2014 offer ought reasonably to have been accepted by Mr. Maung at the time it was made. He had all of the relevant medical information and acceptance would have been reasonable. This was a genuine offer to settle. l. The offer to settle to Mr. Maung was more than double the amount he obtained in the final judgment.

In my view, all of the indicia set out in R. 9-1(5) and (6) justify an award of costs to the defendants from the date of offer until judgment. Ms. Ma m. Ms. Ma contends that she could not reasonably accept the offer prior to trial because she was ill-equipped to assess the offer in light of the advice she had received from her former counsel and in the absence of a lawyer’s advice at the time of the November 2014 offer.

She contends that her inability to retain counsel and properly assess the defendants offer resulted from the defendants conspiracy to deprive her of the opportunity to obtain representation at trial.

n. Ms. Ma relied on Bains v Antle , 2017 BCSC 590 [ Bains ]. At para. 25 in Bains , Madam Justice Power concluded that the evidence available at the time settlement offers were rejected was sufficiently in the plaintiff’s favour; thus, justifying rejection of the defence proposal. Bains was a jury trial and the plaintiff was not found to have lied or misled medical experts. o. This case stands in contrast to Bains . In this case, there are clear findings that Ms. Ma misled medical experts and was untruthful in her testimony. p.

This was not a jury trial (as in Bains ) and the defendants in this case called rebuttal evidence contradicting the plaintiffs’ claims. In Bains , the plaintiff recovered costs because her decision to reject the offer was reasonable in light of the weight of the evidence concerning income loss, earning capacity and future care costs extant before trial. Also, in Bains , the defence tendered no medical opinions against the plaintiff’s claims thus giving the plaintiff confidence that the evidence of her experts would be persuasive. Conclusion q. Overall, the facts in Bains are not comparable to the facts facing Ms.

Ma or Mr. Maung. Overall, given my views concerning the plaintiffs’ credibility, the offers made on November 20, 2014 were ones that ought to have been accepted. Assess the relationship between the terms of settlement and final judgment a. The defendants contend that the damages awards to each plaintiff were dramatically less than the offers to settle thus, the defendants should recover their costs from the date of their offers to the conclusion of the trial because those offers should reasonably have been accepted. b. In this case, Ms.

Ma was offered $125,000 reduced to $75,000 but was awarded only $48,700 [before deductions] but not including interest. Unlike the Bains case, this was not a jury trial and the result was more predictable. In Bains , Power J. concluded that the plaintiff could not have anticipated the jury award below the defendant’s offer and did not place significant weight on that factor. c. In this case, the offers were open for acceptance from November 2014 until February 2016.

Although the parties were unable to retain counsel for the trial, I am satisfied they could have obtained some advice on the question of quantum of damages and being effectively informed before they rejected the defence offers. Overall, I am satisfied that the relationship between the offer to Ms. Ma and her judgment militates in favour of the defendants. d. Similarly, Mr. Maung’s circumstances favour the defendant’s claim. I do not accept his assertions that he was obliged, or felt obliged, to proceed to trial notwithstanding his interest in settlement for $60,000.

It is clear the $60,000 settlement offer was open for acceptance until the day before the trial and comparing the terms of the settlement offer with the final judgment persuade me Mr. Maung should have accepted the offer. Relative financial circumstances of the parties a. Both plaintiffs had spent most of their years in Canada in receipt of assistance from the government. They have no significant work history or employment income. There was no indication that they possessed any financial resources. These circumstances may have limited their ability to retain counsel. b.

It is clear the plaintiff’s former lawyer warned them that, in the worst-case scenario, costs could be awarded against them. c. Although it is extremely unfortunate that the plaintiffs were unable to retain counsel to represent them, after contacting between 50 and 60 lawyers, the responsibility for the outcome rests with them. d. While I expect that the plaintiff’s judgments in this case may be exhausted by the defendants anticipated costs, as noted by Bowden J. in Ben-Yosef v.

Dasanjh , 2016 BCSC 1945 at para. 16 , there must be more evidence about the financial circumstances than the fact that the parties were not employed or had little income. For example, it is not known if the parties have inherited any part of their parents’ estates. On this point, the plaintiffs have not persuaded me the relative financial circumstances of the parties favours the plaintiffs on the issue of costs. Other factors a. Under subrule (

d) the defendants urged the court to take into account the efforts they made in providing oral, written and email explanations to the plaintiffs regarding their responsibilities under the Rules and addressing procedural matters. Counsel assisted the plaintiffs in securing the attendance of their experts at trial including issuing subpoenas where necessary. b. The defence contends that Ms. Ma cross-examined her own physiatrist and economist at trial. She threatened to sue her family doctor and accused her physiotherapist of racism because of recommendations she made.

They contend that the plaintiffs’ post-trial conduct in attempting to convince the court to correct errors has added additional burdens and expenses to the defendants and the court. Overall, the plaintiffs engaged in a campaign of “exaggeration, deceit and outright falsehood in bringing each of their cases to trial”. c. The defendants’ counsel undertook significant efforts to assist the parties in presenting their case. They acted with commendable professional demeanour and where of considerable assistance to the court. d. On balance, I am not satisfied that any additional factors favour the plaintiffs.

In the result, the plaintiffs will pay the defendant’s costs from November 14, 2014 to the conclusion of the trial.

Special Costs Re: Post-Trial Issues [ 66 ] The defendants contend that the behaviour of both the plaintiffs in the aftermath of the trial warrants an award of special costs on this costs application. [ 67 ] They contend that the plaintiffs have egregiously: a. implicated them in a conspiracy to obstruct justice and deceive the court; b. interfered in the preparation of appeal transcripts; c. scheduled events in the litigation to cause significant emotional distress to them; d. blocked their attempts at retaining counsel through covert agents of ICBC; e. misled them with regard to the possible sequences of settlement of their claims against the court unjustly; and f. the court unfairly favoured statements of the defence counsel causing a miscarriage of justice. [ 68 ] The defence points to various parts of the plaintiffs’ written arguments and correspondence containing bald assertions about conspiracy and criminal obstruction of justice instigated by the defendants, ICBC and lawyers without any factual support except a suggestion that the deaths of their parents were exploited by the defendants putting them in emotionally vulnerable places at important times in the litigation. [ 69 ] The allegation levelled against ICBC, a Crown corporation and agent of the Crown without any reliable evidence is reprehensible.

This was pure speculation and, more so reprehensible when coupled with the allegations against counsel. They contend that the suggestion of a criminal conspiracy or criminal obstruction of justice rises to such a level that the court should rebuke them with special costs. [ 70 ] The defence contends that this is not a case of sincere and honest belief in the allegations made. [ 71 ] In Westsea Construction Ltd. v. 0759553 B.C. Ltd. , 2013 BCSC 1352 , Madam Justice Gropper set out the following principles for awarding special costs at para. 73:

a) the court must exercise restraint in awarding specials costs;

b) the party seeking special costs must demonstrate exceptional circumstances to justify a special costs order;

c) simply because the legal concept of “reprehensibility” captures different kinds of misconduct does not mean that all forms of misconduct are encompassed by this term;

d) reprehensibility will likely be found in circumstances where there is evidence of improper motive, abuse of the court’s process, misleading the court and persistent breaches of the rules of professional conduct and the rules of court that prejudice the applicant;

e) special costs can be ordered against parties and non-parties alike; and

f) the successful litigant is entitled to costs in accordance with the general rule that costs follow the event. Special costs are not awarded to a successful party as a “bonus” or further compensation for that success. [ 72 ] Since judgment was given, the plaintiffs have acted reprehensibly in making claims and insinuations against counsel, ICBC, and the court that warrant rebuke at this time. I find, that in the circumstances of this case and in light of all of these allegations made by them, that the defendants will have special costs limited to the costs of this application for special costs.

Deductions [ 73 ] After the accidents, both plaintiffs received social assistance benefits which the defendants contend must be deducted from any past wage recovered. [ 74 ] The defendants do not seek a reduction in Mr. Maung’s judgment by way of a reduction equal to the social assistance benefits he received while unable to work after the accidents They have sought reduction of Ms. Ma’s claim by $5,578. [ 75 ] As indicated in the reasons, that amount to be deducted ought to be reduced because Ms. Ma was entitled to earn some income without deduction from her government benefits.

I do not know how much that would have been.

Although it is a minor point, if the parties cannot agree on a resolution of the amount that would have been exempted from a deduction, then the question of the amount to be deducted because of the government benefits she received while unable to work due to the effects of the injuries, will be referred to the registrar to conduct an inquiry and certify the result. [ 76 ] Last, the plaintiffs are entitled to court order interest on the pecuniary amounts of their judgments and those amounts should be referred to in the entered order. [ 77 ] Finally, during argument counsel brought to my attention a letter from Ms.

Lacroix, the plaintiffs’ previous counsel concerning her assertion of a solicitor’s lien on the proceeds of judgment obtained by the plaintiffs. Ms. Lacroix did not appear on this application and I cannot make any order regarding that claim in the absence of a certificate issued under the Legal Professions Act . If counsel wish

to pursue her lien claim, she must do so in the usual course. “Armstrong J.”