This significant unanimous decision has effectively done away with double costs for ICBC and other disability insurance companies in civil claims where the plaintiff obtains an award for less than an offer to settle (C.P. v. RBC Life Insurance Company, 2015 BCCA 30). 
The important issue in this BC Court of Appeal case was the availability of double costs to a defendant in a case in which the plaintiff has obtained a judgment in its favour, but for less than what the defendant had offered before the beginning of trial.
The offer to settle rule on double costs is now clear, a claimant who obtains a court award for less than an offer to settle is subject to:

  1. Being deprived costs to which the successful claimant would otherwise be entitled under Rule 9-1(6)(a) ;
  2.  Punishment under Rule 9-1(5)(d) as the claimant is not only deprived of costs but must also pay the defendant’s costs subsequent to the offer to settle; but
  3. No double costs- ICBC and other insurance companies are not allowed an award of double costs as it would skew the procedure in favour of defendants and unfairly penalize and pressure plaintiffs.

The Court gives an interesting history of double costs confirming that double costs are a creature of statute not common law. The introduction of double costs  in 1976 was to provide a remedy to plaintiffs who made offers to obtain judgments better than their offers to settle.  A similar intent was behind a 1999 amendment which provided double costs to defendants when an action was dismissed.
If I was not so modest I would suggest that Mr. Justice Goepel reviewed my January, 2014 blog critique of double costs to a defendant when he wrote:

[89]  The case at bar is the second decision in which an award of double costs has been made to a defendant where the plaintiff has received a judgment. A similar award was made in Minhas v. Sartor, 2014 BCSC 47. In Danicek v. Lee, 2011 BCSC 444 the judge considered that he had jurisdiction to make an award for double costs in a similar situation but refused to do so. In none of the aforementioned cases did the judges make reference to the unequivocal comments in A.E. Appeal at para. 44 that “it is likely that double costs would be awarded in favour of the defendant only where the plaintiff’s action was dismissed”.

[90]  Neither the trial judge nor the judge at Minhas made reference to the decision in Gulbrandsen v. Mohr, 2013 BCSC 1481. In Gulbrandsen the trial judge, in reasons indexed at 2013 BCSC 959, initially awarded the plaintiff costs up to the date of the defendant’s offer to settle, and double costs to the defendant thereafter. He then reconsidered the double cost award. After reviewing numerous authorities including A.E.A.E. AppealWard v. Klaus, 2011 BCSC 99 and Currie v. McKinnon, 2012 BCSC 1165, he concluded that it was not appropriate to make an award of double costs to a defendant where the plaintiff had obtained a judgment.

 The court found that the Minhas case was clearly wrong and should not be followed.  It is likely that double costs would be awarded in favour of the defendant only where the plaintiff’s lawsuit was dismissed.
Posted by Vancouver Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.


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