Beat Offer to settle and get Double Costs
The settlement amount offered to ICBC and the timing of the offer is important to a claim for double costs, even in “Fast Track” cases. As a general rule, the successful party in a fast-track personal injury case is awarded $6,500 in pre-trial costs and $1,500 in costs for each day of trial. Where an offer to settle before trial justifies a double-costs award, the court has generally doubled the total amount of the legal fees award following the “point” at which the offer should have been accepted.
In today’s fast track case the defendant was ordered to pay $20,000 in legal fees to the claimant for failing to accept a reasonable offer. The claimant offered $70,000 to settle, the offer was ejected. On the Saturday before the Monday trial the claimant offered $87,500 to settle, which was again rejected. The Supreme Court award over $100,000.00 to the claimant (Johal v. Radek, 2016 BCSC 1170).

In the trial reasons the 70 year old claimant was awarded $60,000 for pain and suffering and a total of $105,496.10 for the various injuries and losses she had suffered in a motor vehicle accident (Trial Decision beat offer to ICBC).

The trial  took  five days and the litigation was conducted under Rule 15-1 as “fast-track” litigation. The main issue that arose was whether the claimant was entitled to double costs on account of the late delivery of a formal offer of settlement. The Supreme Court provides an excellent review and analysis of the current state of the law which is well worth reading:

[10]  Under R. 15-1(15)(c), the maximum costs available for a trial heard over more than two days is $11,000. However, it is open to the court to “order otherwise” in cases where special circumstances exist; Peacock v. Battel, 2013 BCSC 1902 at paras. 17-18. Special circumstances have included trials that were longer than the maximum number of days outlined in the fast-track Rules (i.e. more than three days) and where a reasonable offer to settle was made but not accepted.

[11] This latter circumstance is expressly addressed by R. 15-1(16). Where an offer to settle was made in conformance with R. 9-1, the court may exercise its discretion to order increased costs. This includes awarding double costs for all or some of the steps taken in a proceeding after the date of delivery of the offer to settle; R. 9-1(5)(b).

[12] When awarding double costs in a fast-track proceeding, the court should use the fixed amounts provided in R. 15-1(15) as reference points; Majewska v. Partyka, 2010 BCCA 236 at para. 29. The court should do so by ordering costs in a fixed amount; Bradley v. Groves, 2010 BCCA 361 at para. 42.

[13]   Majewska is often cited when applying R. 15-1(15), so that $6,500 is attributed to all matters up to the commencement of trial and $1,500 is attributed to each day of trial thereafter. These figures are logically reached since $1,500 is the amount added for each day of trial in subrule (15); see Duong v. Howarth, 2005 BCSC 128 at paras. 17-19. In cases where no days of trial have been undertaken – i.e. an offer to settle is accepted before trial – the maximum costs award is $6,500; see Duong at para. 19 and Benz v. Coxe, 2012 BCSC 1043 at paras. 5, 19.

[14]   A slightly different approach was taken in Peacock. In that case, the $11,000 cap was applied to the first three days of trial and $1,500 was added for each additional day of trial. Lam v. Chiu, 2013 BCSC 1281 and Sheikh v. Struys, 2013 BCSC 1148 are other examples of this approach.

[15]  Ultimately, this is a distinction without a difference. Both approaches yield the same figure with respect to additional days of trial; the Court in Peacock simply did not expressly allocate $6,500 to pre-trial costs. The question then is how courts should approach an award of double costs in cases which require more than three days of trial. There are numerous cases that address this issue. The following decisions provide useful guidance and give rise to several conclusions.

[16]  In Peacock, Affleck J. found the costs for a five-day trial should be set at $14,000 – with the additional two days of trial adding $3,000. An offer to settle had been made nearly two months before trial and expired on the Friday before trial. Justice Affleck held that the offer ought reasonably to have been accepted, and that a double costs award was justified. He set costs in a fixed amount of $24,000 in recognition of the trial preparation that had been undertaken before the offer to settle.

[17] Peacock was followed in Pichugin v. Stoian, 2014 BCSC 2062. In that case, several offers and counter offers were made leading up to trial. The last offer expired the Friday before trial. The Court held that the “defendant should be penalized for not accepting the plaintiff’s final offer, but not to the extent of awarding double costs for every day of trial”. Justice Skolrood, therefore, ordered double costs for three of the five days of trial, for a total of $18,500. The double costs were calculated at $1,500 per day.

[18]  Yip v. Saran, 2014 BCSC 1593, also followed this pattern. In that case, Adair J. found that an offer made one week before trial ought reasonably to have been accepted by the defendant. She ordered costs of $6,500 for pre-trial preparation, plus double costs for the five days of trial, totalling $21,500.

[19]  Finally, in Codling v. Sosnowsky, 2013 BCSC 1220, the trial judge ordered double costs for two days of a three-day trial, increasing the costs award from $11,000 to $14,000. The offer to settle had been delivered six days before a re-scheduled trial.

[20]  Other cases have departed from this pattern by doubling the full amounts prescribed by R. 15-1(15), rather than only a few days of trial. However, in these cases, the offer to settle was made well in advance of trial. The courts appear to have given effect to R. 9-1(6)(c) so that costs were doubled “after the date of delivery or service of the offer to settle”, or after the time at which the party ought reasonably to have accepted the offer to settle.

[21]   In P.H. v. Canada (Attorney General), 2016 BCSC 173, Canada made an offer to settle six months before trial. Justice Truscott concluded that that offer ought reasonably to have been accepted by the plaintiff. Double costs for the one-day hearing were ordered, with a 10% discount imposed to account for trial preparation done prior to the offer. Justice Truscott doubled the full $8,000 amount set out in R. 15-1(15)(a). The total award was therefore fixed at $14,400.

[22]   In Sciancamerli v. Comtech (Communication Technologies) Ltd., 2014 BCSC 2222, Sharma J. ordered double costs for a one-day fast-track matter after reviewing an offer to settle made nearly eight months before trial. No discount was applied for trial preparation done prior to the offer. The amount set out in R. 15-1(15)(a) was doubled, resulting in a costs award of $16,000 plus tax.

[23]  In Monical v. 0793545 B.C. Ltd., 2013 BCSC 254, an offer to settle was made almost two months before trial and expired on the last business day before trial. Justice Blair ordered double costs for the three-day trial but, again, doubled the full amount of the costs award. This resulted in a costs order of $22,000.

[24]   Finally, in Ducharme v. Bradler, 2015 BCSC 940, multiple offers to settle were made by the defendant years and months before trial which substantially exceeded the result at trial. The Court doubled the full costs of a two-day hearing to $19,000.

The claimant was awarded double costs for 4 out of 5 days of trial. The judge however did not extend the double costs award to the first day of trial, that being the day that the offer was received, but did so for the remaining four days of trial. The claimant was entitled to $6,500 for her trial preparation costs, $1,500 for the first day of trial, and $12,000 for the remaining four days of trial for a total of $20,000.
Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.

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