Dilprit Takhar Plaintiff v. Insurance Corporation of British Columbia and, 2024 BCSC 1

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Takhar v. Insurance Corporation of British Columbia, 2024 BCSC 1 Date: 20240102 Docket: M179691 Registry: Vancouver Between: Dilprit Takhar Plaintiff And Insurance Corporation of British Columbia and John Doe #1 and John Doe #2 Defendants Before: The Honourable Justice Funt Ruling on (Double) Costs Counsel for the Plaintiff: T. O’Mahony Counsel for the Defendants: P.K. Hamilton Place and Date of Hearing: Vancouver, B.C. December 15, 2023 Place and Date of Ruling: Vancouver, B.C.

January 2, 2024 [ 1 ] These reasons should be read with the trial reasons indexed at Takhar v. Insurance Corporation of British Columbia , 2023 BCSC 718 (the “Trial Reasons”). [ 2 ] Under Rule 9-1(5)(

b) of the Supreme Court Civil Rules , the Insurance Corporation of British Columbia (“ICBC”), the defendant, seeks double costs at Scale B from June 28, 2021 onwards and costs on a single cost basis before June 28, 2021. [ 3 ] Rule 9-1(6) reads:

(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. [ 4 ] On June 28, 2021, ICBC offered to settle the action. The main provisions of ICBC’s June 28, 2021 written offer read: The Defendants offer to settle this action in its entirety on terms that upon acceptance this offer to settle: (

a) the Plaintiff will be entitled to payment by the Defendants of $100,000.00 (the “Settlement Payment”) (

b) the parties will be entitled to costs in accordance with this offer to settle (the “Settlement Costs”). The Settlement Payment (

a) is offered after taking into account

Part 7 benefits paid or payable, pursuant to

Section 83 of the Insurance (Vehicle) Act , R.S.B.C. 1996, c. 231 ; (

b) is offered after taking into account any advances paid to date; (

c) includes court order interest; and (

d) excludes the Settlement Costs. On acceptance of this offer, the parties agree that:

1. The Plaintiff is entitled to his costs of the action at Scale B and necessary and reasonable disbursements to the date of delivery ofthis offer assessed in accordance with Rule 14-1 of the Supreme Court Civil Rules, B.C. Reg. 168/09 (the “Civil Rules”); and 2. The Defendants are entitled to their costs of the action at Scale B and necessary and reasonable disbursements from the date ofdelivery of this offer assessed in accordance with Rule 14-1 of the Civil Rules. [5] In Norris v. Burgess, 2016 BCSC 1451, I wrote: [39] In writing for our Court of Appeal in C.P. v.

RBC Life Insurance Company, 2015 BCCA 30, leave to appeal ref’d [2015]S.C.C.A. No. 136, Justice Goepel, in considering a trial award of double costs, sets forth generally the purpose of the costs rules relatedto settlement offers: [94] The underlying purpose of the offer to settle rule was set out in Hartshorne: [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), (BC CA), 2 B.C.L.R. (3d) 201 (C.A.), Radke v. Parry, 2008 BCSC 1397). In thisregard, Mr.

Justice Frankel’s comments in Giles are apposite: [74] The purposes for which costs rules exist must be kept in mind in determining whether appellate intervention is warranted. Inaddition to indemnifying a successful litigant, those purposes have been described as follows by this Court: • “[D]eterring frivolous actions or defences”: Houweling Nurseries Ltd. v. Fisons Western Corp. (1988), (BCCA), 37 B.C.L.R. (2d) 2 at 25 (C.A.), leave ref’d, [1988] 1 S.C.R. ix; • “[T]o encourage conduct that reduces the duration and expense of litigation and to discourage conduct that has the oppositeeffect”: Skidmore v.

Blackmore (1995), (BC CA), 2 B.C.L.R. (3d) 201 at para. 28 (C.A.); • “[E]ncouraging litigants to settle whenever possible, thus freeing up judicial resources for other cases: Bedwell v. McGill, 2008BCCA 526, 86 B.C.L.R. (4th) 343 at para. 33; • “[T]o have a winnowing function in the litigation process” by “requir[ing] litigants to make a careful assessment of the strengthor lack thereof of their cases at the commencement and throughout the course of the litigation”, and by “discourag[ing] the continuanceof doubtful cases or defences”: Catalyst Paper Corporation v.

Companhia de Navegaçao Norsul, 2009 BCCA 16, 88 B.C.L.R. (4th) 17at para. 16. [95] A plaintiff who rejects a reasonable offer to settle should usually face some sanction in costs. To do otherwise would underminethe importance of certainty and consequences in applying the Rule: Wafler v. Trinh, 2014 BCCA 95 at para. 81. The importance of thoseprinciples was emphasized by this Court in A.E. Appeal at para. 41: [41] This conclusion is consistent with the importance the Legislature has placed on the role of settlement offers in encouraging thedetermination of disputes in a cost-efficient and expeditious manner.

It has placed a premium on certainty of result as a key factor whichparties consider in determining whether to make or accept an offer to settle. If the parties know in advance the consequences of theirdecision to make or accept an offer, whether by way of reward or punishment, they are in a better position to make a reasoned decision.If they think they may be excused from the otherwise punitive effect of a costs rule in relation to an offer to settle, they will be moreinclined to take their chances in refusing to accept an offer.

If they know they will have to live with the consequences set forth in theRule, they are more likely to avoid the risk. [40] With respect to the first factor in R. 9-1(6), whether the offer ought reasonably to have been accepted, Goepel J.A. in C.P. states: [97] Whether an offer to settle is one that ought reasonably have been accepted, is assessed not by reference to the award that wasultimately made, but under the circumstances existing when an offer was open for acceptance: Bailey v. Jane, 2008 BCSC 1372 atpara. 24 and Hartshorne at para. 27.

This factor is considered from the perspective of the person receiving the offer. It has both asubjective and objective component. The court is entitled to take into account the reasons why a party declined to accept an offer tosettle. The court must consider whether those reasons are objectively reasonable. [41] I emphasize that R. 9-6(1)(

a) uses the word, ought. “Ought” is defined in The Oxford English Dictionary, 2d ed. as follows: b. In present sense: = Am (is, are) bound or under obligation: you ought to do it = it is your duty to do it; it ought to be done = it is rightthat it should be done, it is a duty (or some one’s duty) to do it. (The most frequent use throughout. Formerly expressed by the pres. t.,OWE v. 5.) [42] The use of the word “ought” in R. 9-6(1)(

a) evinces a legislative intent that the court may consider whether the offer was onethat the offeree should have accepted. Where the offeror is the plaintiff, this wording encourages an offer that falls at the low end of therange of potential trial awards the plaintiff is anticipating. Where the offeror is the defendant, it encourages an offer that falls at the highend of the range of potential trial awards the defendant is anticipating.

In short, the word “ought” brings the respective positions of theparties closer, with the object of reaching an agreement and conserving judicial and other resources. [6] As may be seen from the Trial Reasons, the plaintiff brought this action against ICBC as nominal defendant under s. 24(5) of theInsurance (Vehicle) Act, R.S.B.C. 1996, c. 231. Section 24(5) reads:

(5) In an action against the corporation [ICBC] as nominal defendant, a judgment against the corporation must not be given unless the

court is satisfied that (

a) all reasonable efforts have been made by the parties to ascertain the identity of the unknown owner and driver or unknown driver, as the case may be, and (

b) the identity of those persons or that person, as the case may be, is not ascertainable. [ 7 ] At trial, the plaintiff sought $2,040,921 in damages. His action was dismissed. He did not make “all reasonable efforts” to ascertain the identity of the driver of the minivan that collided with the car the plaintiff was driving. The driver (or owner) of the minivan was never ascertained. [ 8 ] In its January 19, 2018 response to civil claim, ICBC pleaded (in part): 2.

In answer to the whole of the Notice of Civil Claim herein, if a collision occurred either as alleged or at all, and if the identity of the owner/driver of the vehicle alleged to have struck that of the Plaintiff is not ascertainable, either as alleged or at all, none of which is admitted but denied, the Defendant says that the Plaintiff did not make all reasonable efforts to ascertain the identity of the person or persons hereinbefore referred to and the Defendant says that by reason of that failure to make all reasonable efforts to ascertain the identify or identities of the persons hereinbefore mentioned, the Plaintiff is not entitled to indemnity from the Defendant and the Defendant pleads and relies upon Section 24(5) of the Insurance (Motor Vehicle Act), R.S.B.C. 1996,

Chapter 231 . [Emphasis added.] [ 9 ] On December 16, 2019, the plaintiff was examined for discovery. [ 10 ] At the December 16, 2019 examination for discovery, the plaintiff stated that he had not looked in his rear-view mirror to attempt to ascertain the driver of the minivan. [ 11 ] After the discovery, it would have been known that the plaintiff had not looked in his rear-view mirror, had not engaged his hazard lights, and had not waved the driver of the minivan to follow him.

Without having done so, the plaintiff had no basis to say that he had made “all reasonable efforts” to ascertain the driver of the minivan as required under s. 24(5) of the Insurance (Vehicle) Act . Accordingly, his claim against ICBC was bound to fail. [ 12 ] Accordingly, the plaintiff ought to have accepted ICBC’s June 28, 2021 offer. [ 13 ] There is no evidence that ICBC used its financial resources or other means to unfairly affect the course of the litigation or the outcome of the action. [ 14 ] I will award ICBC the costs it seeks based on having made its June 28, 2021 offer. “Funt J.”