The Court of Appeal has upheld a double legal costs award against the Province of  British Columbia after the Province lost a claim against a private BC company (British Columbia v. Salt Spring Ventures Incorporated,2015 BCCA 343) . Even though the settlement offer was not one which ought reasonably to have been accepted by the Province the trial judge still awarded double legal costs for the whole 10 day trial. This case is unlikely to apply to ICBC offers to settle in car accident litigation cases because the claim was dismissed in its entirety.
The offer of settlement proposed that the Province discontinue its lawsuit by way of a consent dismissal, that legal costs be awarded to the defendants, and that the defendant discontinue some third party notices in some related actions. This offer was refused by the Province. In upholding the award of double costs against the Providence the court made clear:

[20]  The second factor that may be considered, the result at trial, is an independent factor (Hartshorne para. 30). This factor examines the actual results of the trial, and weighs in favour of rewarding the party who made an offer that resulted, in this case, in a dismissal of the action. The weight placed on this factor is within the discretion of the trial judge. While it may be unusual to award double costs when acceptance of the offer was not reasonable, it is an independent consideration, and it is clearly open to the trial judge to place weight on this factor. See also Chemainus Park Holdings Ltd. v. Island Timberlands GP Ltd., 2015 BCCA 325.

[21] The trial judge heard ten days of evidence and argument. She concluded that double costs would not be awarded from the time of the offer, but rather for the period taken up by the trial. She was in the best position to determine whether double costs were appropriate in this case. I cannot say that she committed an error in principle or was clearly wrong.

This case is unlikely to apply to most ICBC settlement offer cases. Most personal injury plaintiff’s do not have the same resources available to prosecute a claim with such sweeping allegations against private citizens.   The trial judge found however the Providence financial ability to be a neutral factor as nothing suggested that the Province used a superior financial position in an unfair way.

When an injury claimant rejects an unreasonable ICBC offer to settle a trial judge has little discretion to  penalize the claimant for rejecting an offer that represented no real compromise and “ought not reasonably have been accepted”  except to deny legal costs and award costs in favour of the successful party

Posted by Vancouver Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.


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