Hamilton v. Duggan Date:, 2016 BCPC 387

Citation: Hamilton v. Duggan Date: 20161026 2016 BCPC 387 File No: C-5006 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: LORI HAMILTON CLAIMANT AND: SANJA DUGGAN AND CHRIS DUGGAN DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY Appearing on her own behalf: Lori Hamilton Counsel for the Defendants: M. Margetts Place of Hearing: Duncan, B.C.

Date of Hearing: October 26, 2016 Date of Judgment: October 26, 2016 [ 1 ] THE COURT: I have the application of the defendants in this matter before me. [ 2 ] The defendants are seeking to extend the time available, in order that they may make a formal offer to settle, which they cannot do as a result of missing the deadline for making that offer to settle within the prescribed period of time from the completion of the settlement conference on May 27, 2016. [ 3 ] The requirements governing the making of the offer to settle are under the Small Claims Rules and pursuant to Rule 10.1 (2).

That offer to settle must be served within 30 days after the conclusion of the settlement conference as set out under ss. (

a) or at a later time, if permitted by a judge as set out under ss. (b). [ 4 ] That did not occur, as I previously indicated. Counsel for the defendants is candid when they say that it was an oversight on the part of counsel when they failed to provide the offer to settle within the prescribed period of time. [ 5 ] The issues of this particular claim arise from alleged injuries caused by the dog owned by the defendants and sustained by a cat owned by the claimant.

The amount of the claim now stands at $6,525.79, plus filing fees, which includes a veterinarian bill, and then also a significant claim for what is referred to as “time to attend” and mileage charges, as I understand it, incurred by the claimant and relating to the veterinarian treatment of the cat, and then there are also claims for damages that relate to home nursing care and time, and then further for something called “collection administration”, including phone calls and correspondence with the SPCA. [ 6 ] The defence raises the issue of causation, and then takes issue with the various amounts being claimed for the additional expenses for the mileage, injury related home nursing time, and collection administration charges, and the so-called time to attend. [ 7 ] The matter has been set for trial.

As I understand it that trial date is in December of this year. At the settlement conference, the time estimate allowed for four witnesses for the claimant, with no indication of the number of witnesses for the defendant, was for five hours of trial time. [ 8 ] The issue that I have to resolve is whether or not I am prepared to extend the time available for the filing of the offer to settle.

In this case, what is really at play, and again counsel for the defendants is candid, is that they will be seeking ultimately to utilize the penalty provisions of the Small Claims Rules , found under Rules 10.1 (6) and (7) if they are able to have an extension of the time for the filing of the defendants’ offer to settle. [ 9 ] The authorities which I have consulted, and specifically the Small Claims Handbook produced by the Continuing Legal Education Society of British Columbia, (the “CLE Handbook”) at

Part 5.36, states as follows, and I quote: Of course, an offer to settle may be made and accepted after the time limit set out in Rule 10.1 (or as extended by a judge), but in that case no penalty may be imposed. [ 10 ] No authority is cited for that particular proposition.

I asked counsel, and counsel has not been able to provide me with any case authorities in support or in opposition of that particular suggestion. [ 11 ] However, it is clear that the defendants are seeking an extension of the time in order that they can seek to avail themselves of that penalty provision. [ 12 ] Given that the defendants are represented by legal counsel, and given that the claimant is self-represented, I am reluctant on the basis of an oversight by legal counsel to leave the claimant subject to this specific penalty claim provision, whether or not it can or cannot be applied.

If I were to grant the application on terms, and thereby permit the offer to settle to be served “without prejudice” to a future decision as to whether or not this penalty provision can even apply, I may be inadvertently subjecting Ms. Hamilton to a mandatory consideration of those increased penalty provisions or their application.

The Rule 10.1 penalty provisions are beyond what is still available for the court to consider under the Rule 20(5) penalty provisions, mindful that there is always considerable discretion held by the court as to the amounts that may be payable under either set of penalty provisions. [ 13 ] Given the whole of the circumstances in this matter, I am going to dismiss the application by the defendants for the extension of the time to serve the offer to settle.

I am not satisfied that the mere oversight of counsel in serving the offer to settle within the appropriate time frame meets the required test of a “good reason” (referred to in the CLE Handbook) for extending that time in these particular circumstances. [ 14 ] Accordingly, I am dismissing the application. The matter will go directly to trial. [ 15 ] Thank you. (REASONS FOR JUDGMENT CONCLUDED)