In this personal injury car accident case ICBC applied for an award of its costs or, alternatively, to deprive the claimant of their costs.  ICBC offered to settle for $50,000.00 with the husband and $150,000.00 for the wife. After more than two weeks at trial the Judge awarded the wife $75,000.00 and the husband $189,000.00. (Liu v. Bourget,2014 BCSC 1534).
ICBC argued that the claimant had made unrealistic formal offers to ICBC of $515,000 and $950,000. ICBC said, while neither party beat its formal offer,  ICBC made a genuine attempt at compromise and that the claimants did not. With respect to the question of divided success, ICBC noted that the wife failed entirely in her claim for lost earning capacity, and the damages awarded under other heads were substantially below what she claimed. Similarly, the husband’s award was substantially less under all heads than what he claimed.
However the judge was quick point out that ICBC’s offers to settle were not ones that should reasonably have been accepted by the claimants. Each claimant beat the offer by a significant degree when considered in percentage terms. As such, “the existence of ICBC’s offers is not a factor that would cause me to exercise my discretion to depart from the normal costs order”.
The judge did go on however to award the claimants only 75% of their costs, the rationale as follows:

[23]  That said, I do agree with ICBC that the plaintiffs overreached on certain of their claims; in particular, the claims for lost earning capacity, which claims suffered from the lack of a solid evidentiary foundation. This is evidenced by the significant difference between the amounts awarded, which in Ms. Cheng’s case was nothing, and the amounts claimed, both in the plaintiffs’ offers to settle and in the figures advanced at trial.

[24] In the circumstances, I think that the proper approach is that taken on similar facts by Mr. Justice Schultes in Fadai v. Cully, 2014 BCSC 290, where he awarded the plaintiff 75 percent of his costs. The plaintiffs are therefore entitled to recover 75 percent of their costs of the action at Scale B.

Issue: Should there be consequences to ICBC if it does not offer a realistic amount for settlement ?

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