In the past year, an unusual number of ICBC cases have proceeded to trial. This is in large part due to ICBC’s current tactic of offering unreasonable and low ICBC settlement offers. As a result, numerous trials have been adjourned and postponed because there simply are not enough judges or courtrooms to handle the amount of trials. This has had a devastating impact to injured claimants who had been waiting years to resolve their claims.
As discussed in a previous blog post, trial judges have punished ICBC’s lowball settlement tactics which waste the court’s resources.
A particularly unusual punishment against ICBC was handed down this week in Johnson v. Heer 2020 BCSC 1751.
At trial, the trial judge awarded the injured claimant $147,512.47 for pain and suffering, past loss of income, future loss of income, cost of future care and special damages. Before trial, ICBC’s offer to settle was $41,000.00 and the injured claimant’s settlement offer was $80,000.00.
The trial judge noted that ICBC did not strenuously defend the claim. Liability was admitted and ICBC elected not to call any evidence at all.
As punishment against ICBC for clearly wasting the court’s time by refusing to settle fairly and reasonably, the trial judge awarded the injured claimant “double costs”. The purpose of double costs is to encourage parties to carefully assess the strength or lack thereof of their cases, to discourage the continuation of doubtful cases and to encourage settlement wherever possible thus freeing up judicial resources for other cases.
The injured claimant also made a novel argument to further punish ICBC for its unreasonable behaviour. He sought “uplift costs” for trial preparation and the trial itself which was unnecessary if ICBC had attempted to negotiate fairly. In awarding uplift costs to the injured claimant, the trial judge stated:
[33] This brings me to what I consider to be the unusual circumstances that warrants an award of uplift costs on the specific facts of this case. At trial, the defendant submitted that the plaintiff’s damages ought to be in the range of $69,943 to $111,943. The lower range of the defendant’s submission was some $28,942 higher than the defendant’s own formal offer to settle, which remained open until the eve of trial. Even more unusual is that the upper range of the defendant’s submission was $31,943 higher than the plaintiff’s final formal offer to settle, (which also had remained open until the eve of trial), and $14,443 higher than the plaintiff’s original formal offer to settle.
[34] In these circumstances, it would appear the only reason the defendant did not accept either of the plaintiff’s offers was to simply force the plaintiff to go to trial. This conduct required the plaintiff to expend even more funds than it already had. It is difficult to fathom why the defendant would force the trial to proceed when it could have settled the trial for less money than it submitted the plaintiff was entitled to at trial.
[35] While the defendant is not required to make an offer, it did. Moreover, while the defendant is not required to accept an offer, they have agreed that they should have. Clearly, this concession is not based solely upon the benefit of hindsight after the judgment was rendered. The defendant knew at the time of trial that it should have accepted the plaintiff’s offer, as evidenced by their submission at trial that the range the plaintiff was entitled to was more than the plaintiff had offered. Instead, the defendant forced the plaintiff to trial to obtain what the defendant itself obviously considered to be a fair result, when there was a clear and open way to avoid the need for the trial at all.
[36] Moreover, I note that this trial proceeded a matter of just a few weeks after the court resumed limited operations following its closure due to the COVID‑19 pandemic. The pandemic was at its relatively early stages at the time of the trial, and public health officials had urged British Columbians to limit their exposure to public places to only essential matters. In the circumstances I have described, attendance at this trial was not essential and it exposed the plaintiff, her husband, her mother, her counsel and defence counsel to an increased risk of exposure to the virus. In these unusual circumstances, I find that an award of costs on the usual scale would be unjust, and I exercise my discretion to award uplift costs to the plaintiff for trial preparation and attendance at trial for items 34 and 35 of the Tariff.
Despite what the NDP has tried to convince the public of, this case serves as a prime example of how ICBC is the problem, not injured claimants or their counsel.