For  ICBC personal injury claims, and other personal injury cases, the laws governing settlement offers are more confusing than any time in history. The Supreme Court Rules changed in 2010 and judicial interpretation since then has set settlement negotiations on a new course.  The consequences for failing to accept a reasonable offer are now left to judicial discretion not the rules of court.

 Importantly, the wording requirement in the Rules have been changed by Judges. Judge Punnett in G.(H.) v. G.(R.), 2014 BCSC 273 interprets the rules this way:

[21]  The claimant’s offer was in writing and was delivered to the respondent on October 4, 2013. It contained the statement “the claimant reserves the right to present this letter to the court on the matter of costs”. While the wording is not in strict compliance with the wording set out in Rule 11-1 I am satisfied that its intent was clear and that the claimant was reserving the right to bring the offer to the attention of the court on the issue of costs (see Roach v. Dutra, 2010 BCCA 264 at para. 52; and Middleton v. Howard, 2012 BCSC 1431).

 In P.H. v. Canada (Attorney General), 2016 BCSC 173, Truscott J. dealt with two offers of settlement. In relation to the first offer Truscott J. said:

[33]   The “offer” contained in the letter of January 19, 2015, however, was defective. It was not substantially compliant with Rule 9-1(1)(c)(iii), which required the letter to stipulate that the Attorney General reserved the right to bring the offer to the attention of the court for consideration in relation to costs after the court has pronounced judgment on all other issues in this proceeding. In fact, there was no mention of the possibility that the offer would be brought before the court at all. Therefore, this was not an offer to settle within the meaning of the rules: Roach v. Dutra, 2010 BCCA 264 at para. 52.

Judge Truscott  concluded that the  first offer, whose language or terms are not quoted in the judgment, did not comply with the rules. The second offer included an offer to waive costs if the other party abandons pursuit of its claim and was therefore considered an appropriate offer to settle and thus may be considered in relation to the costs award. The second offer, “substantially complied with the requirements of the Rule”.

Rule 9-1(6) sets out the various factors that are relevant to offers to settle in ICBC cases. The central object of Rule 9-1 is to “encourage the early settlement of disputes by rewarding the party who makes a reasonable settlement offer and penalizing the party who declines to accept such an offer”; Hartshorne v. Hartshorne, 2011 BCCA 29 at para. 25.  Awards of double costs can be made under this Rule but are considered a punitive measure.

Double costs can be awarded if a claimant beats an offer by to ICBC. However double costs are no longer limited to offers to settle made to settle the whole of an action or proceeding.  Instead, double costs are also available in respect of an offer to settle that is made in relation to even a single an application (see Moro v. El Mantari, 2010 BCSC 631 at paras. 19, 21). This confuses the assessment of costs requiring further judicial intervention in personal injury matters.

Here is a draft of an offer to settle to ICBC with proper wording. Hiring a competent lawyer with experience in personal injury settlements in BC however is currently the single most reliable way to make an enforceable offer to settle.

Posted by Vancouver Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.- Since 1999 Holness Law Group has successfully settled over a thousand  ICBC personal injury claims including tort and Part VII.

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