Lin v. Koszmider, 2024 BCSC 135

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Lin v. Koszmider, 2024 BCSC 135 Date: 20240130 Docket: M1810796 Registry: Vancouver Between: Chao Lin also known as Frank Lin Plaintiff and Michal Leszek Koszmider Defendant Before: The Honourable Chief Justice Hinkson Reasons for Judgment Counsel for the Plaintiff: E. Kwa Counsel for the Defendant: L. Grant Place and Date of Hearing: Vancouver, B.C. November 16, 2023 Place and Date of Judgment: Vancouver, B.C.

January 30, 2024 [ 1 ] The trial in this motor vehicle action was heard by me on February 27 and 28, 2023, and March 1-3, 2023. [ 2 ] In reasons for judgment dated May 5, 2023, indexed at 2023 BCSC 752 , I awarded the plaintiff damages in the amount of $42,000 with applicable interest pursuant to the Court Order Interest Act , R.S.B.C. 1996, c. 79 . [ 3 ] At the time that my reasons for judgment were released, I was properly unaware that on Thursday, February 23, 2023, counsel for the defendant had served a formal offer to settle on counsel for the plaintiff for the sum of $187,500 together with costs at Scale B of the Supreme Court Civil Rules , B.C.

Reg. 168/2009 , as well as necessary and reasonable disbursements (“the offer”). [ 4 ] The defendant concedes that the plaintiff is entitled to his reasonable and necessary costs up to the date of the offer, but having succeeded in a result at trial more favourable than his offer to settle, seeks an order that the parties each bear their own costs of the action after the offer.

Background [ 5 ] The motor vehicle accident that underlay this action occurred on November 2, 2016. [ 6 ] The plaintiff’s notice of civil claim was filed on October 11, 2018. [ 7 ] The defendant’s response to the notice of civil claim, denying liability, was filed on July 24, 2019. [ 8 ] The offer was made four days before the trial, and was open for acceptance until 4:00 pm on the first day of the trial. Discussion [ 9 ] Rule 9-1(5)– (6) of the Supreme Court Civil Rules, B.C.

Reg. 168/2009 [ Rules ], provides direction with respect to offers to settle civil claims, and gives the court considerable discretion where such offers are made. [ 10 ] In Bailey v. Jang, 2008 BCSC 1372 [ Bailey ] at para. 18 , I acknowledged that the Court’s discretion is guided by the

considerations outlined in Rule 9-1(6):

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; and

d) any other factor the court considers appropriate. [ 11 ] Parties who give or receive an offer to settle are expected to assess the risk of doing better or worse than the settlement offer at trial: Jackson v. Yusishen , 2014 BCSC 406 at para. 28 . [ 12 ] In Bennett v. Scanlan , 2010 BCSC 50 , Justice Dardi found that a period of two days was sufficient to allow a plaintiff to assess whether or not to accept a defendant’s second offer to settle, having had the time to consider the defendant’s first offer. [ 13 ] In D. (J.) v.

Chandra , 2014 BCSC 1272 , Justice Griffin awarded the plaintiff double costs after both parties exchanged what were determined to be uncomplicated offers to settle, the last of which was delivered by the plaintiff late on a Friday preceding the start of the trial the following Monday. One of the factors relied upon by Griffin J. (as she then was) was the fact that the defendant in the case was represented by counsel retained by ICBC, whom she considered were able to evaluate and respond to the plaintiff’s offer to settle within hours. [ 14 ] In Kobetitch v.

Belski , 2018 BCSC 2247 , Justice Gomery held that assessing whether an offer to settle ought reasonably to have been accepted requires an objective assessment of the case as it appeared to the plaintiff at the time it was presented. At para. 26, Gomery J. determined: 26 I should add that, independently of subrule 9-1(6)(a), I think it may often be germane to consider whether the offer was a reasonable offer, that is, one that it would have been reasonable for the plaintiff to have accepted.

That consideration falls to be addressed under subrule 9-1(6)(d), "any other factor the court considers appropriate". [ 15 ] The plaintiff here asserted that having recovered damages, he should recover his costs at Scale B of the Rules for all aspects of the litigation. He referred me to the decision in Fan (Guardian ad litem of) v. Charma, 2009 BCSC 1497 , which predates Bailey , and where, at para. 19 , Justice McEwan commented: 19 The reintroduction of judicial discretion in costs certainly serves the ends of justice.

Costs should be a penalty for unreasonable conduct in the litigation, not a penalty for failing to guess the outcome. In this regard, Courts must, I think, extend some leeway to litigants holding honest but, ultimately, mistaken views of their claims. It is generally better that such expectations be disposed of at law, rather than discouraged. The public should not be given the impression that there is no reasonable access to a legal resolution.

It must be recognized that some people will only be comfortable if they "hear it from the judge." This should be a valid option for those who seek it, not a form of deemed unreasonableness. As such, inducements to settle, and to avail oneself of alternate dispute resolution, ought to complement rather than obstruct judicial determinations. [ 16 ] In Zhao v. Yu , 2015 BCSC 2342 [ Zhao ] Justice Baker noted that the defendant's case was mounted by an insurer who would pay any award of costs.

The plaintiff, on the other hand, had limited income and was supporting a wife and daughter, and observed at para. 10: [10] Based on the evidence heard at trial, the Plaintiff is not a wealthy person. He supports himself, and contributes to the support of his partner and her daughter, who has significant disabilities, from his income from employment.

Denying the Plaintiff his costs; or making an award of costs in favour of the Defendant would undoubtedly significantly erode the award of damages; and result in the Plaintiff being under-compensated for the injuries and losses resulting from the Defendant's negligence. [ 17 ] At para. 13, Baker J. said: [13] While in hindsight the Defendant's Offer was indeed reasonable, that is not the test.

Rule 9-1(5) and 9-1(6) were not intended, in my view, to punish parties merely because the party's assessment of the value of the claim proves incorrect, unless that assessment was based on irrelevant considerations; a clearly inadequate review of the available evidence and applicable authorities, or was, in view of the facts known at the time, unreasonable. [ 18 ] I will discuss the second, third and fourth considerations outlined in Rule 9-1(6), before turning to the first one. (

i) The Relationship between the Terms of the Settlement Offered and the Final Judgment [ 19 ] Mr. Lin’s recovery at trial was significantly below the offer. (ii) The Relative Financial Circumstances of the Parties [ 20 ] While Mr. Lin’s financial circumstances are comparable to those of the plaintiff in Zhao , I am not persuaded, as Baker J. was in Zhao , that the resources of what I assume to be Mr. Koszminder’s insurer are properly considered with respect to this factor. [ 21 ] As I said in Bailey (a case that was apparently not brought to the attention of Baker J. in Zhao ) at paras. 33-35:

33 While I accept that it is likely that most drivers in British Columbia are insured by ICBC, the wording of subrule 37B does not invite consideration of a defendant's insurance coverage. There may be good policy reasons for this. Insurance coverage limits with ICBC are not universal, and will vary from insured to insured. Certain activities may result in a breach of an individual's insurance coverage, or the defence of an action under a reservation of rights by ICBC.

A plaintiff will not and likely should not be privy to such matters of insurance coverage between a defendant and ICBC. 34 The contest in this case was between the plaintiff and the defendants, and the insurance benefits available to the defendants do not, in my view, fall within the rubric of their financial circumstances, any more than any collateral benefit entitlement that a plaintiff may have would affect that person's financial circumstances for the purpose of determining their loss. 35 There is no evidence before me as to the defendants' financial circumstances.

What little I do know of the circumstances of the defendant Pricilla C. Jang is that, at the time of the accident, she was driving her mother's motor vehicle, and that she was employed as a parts delivery person for a motor vehicle dealership. That does not suggest to me that her financial circumstances are appreciably different from those of the plaintiff. [ 22 ] I find myself similarly disadvantaged with respect to Mr.

Koszminder’s financial circumstances and consider this factor to be a neutral one. (iii) Any Other Factor [ 23 ] Other than the distinction identified by Gomery J. at para. 26 in Kobetitch , I find there are no other factors that should appropriately be considered, and find that the factor identified by Gomery J. is of no consequence in Mr. Lin’s case. (iv) Reasonable Offer [ 24 ] In Tisalona v. Easton , 2016 BCSC 1210 , Justice Wedge found at paras. 37-39 that the plaintiff: 37 … had strong medical opinions from two well-qualified experts about her condition following the January 2008 accident.

The difficulty was that neither expert saw the plaintiff before mid-2011, before the second accident. I concluded that I could not accept some of the conclusions based on their understanding of the plaintiff's history and some of the physical findings. However, the plaintiff had the experts' opinions in hand before the trial.

In my view, it was not unreasonable for her to reject the defendants' offer of $88,000 in light of those opinions. 38 In addition, were I to deal with the costs award as urged upon me by the defendants, the plaintiff would be deprived of most of the damages she was awarded as a result of the defendants' negligence in the first action. 39 I am satisfied, as the trial judge who heard all of the evidence in this action, that the defendants' offer was not one the plaintiff ought reasonably to have accepted. The plaintiff had a reasonable basis to pursue her case at trial. [ 25 ] Mr.

Lin had but two opinions, only one of which was tendered at trial, and that one did not support Mr. Lin’s claim in an amount that was even close to the offer to settle of February 23, 2023. [ 26 ] Given the disparity between the defendant’s offer to settle of February 23, 2023, and the plaintiff’s recovery at trial, I find that the offer to settle was one that ought reasonably to have been accepted either by Mr.

Lin, or a reasonable person in his position. [ 27 ] Under Rule 9-1(6) the defendant is arguably entitled to his costs at some point on or after the offer, but as he conceded that the plaintiff is entitled to his costs up to the date of the offer, and seeks only an order that the parties each bear their own costs of the action after the offer, I will grant that order. Conclusion [ 28 ] I award Mr. Lin his taxable costs and disbursements up to and including February 23, 2023 at Scale B of

Schedule B of the Rules . Thereafter each of the parties will bear their own costs. “The Honourable Chief Justice Hinkson”