In prior blog posts, we have written about ICBC’s current strategy of making low offers to settle which drive cases to trial unnecessarily instead of settling for a fair and reasonable amount. This has resulted in enormous amounts of money being spent by ICBC wastefully with the NDP instead blaming injured claimants. ICBC’s mismanagement and refusal to fairly settle claims continues to cost British Columbians volumes of money. ICBC still is not held accountable by our provincial government. Shouldn’t the ICBC executives who are responsible for how ICBC operates be held accountable? Why are they still receiving their bonuses and increased salaries while remaining in charge of a failing corporation?
Halvorson v. West 2022 BCSC 457 is another example of ICBC losing at trial when it had a clear opportunity to settle for a reasonable amount before. Instead, the court’s valuable time and resources were wasted. In this case, the injured claimant sought an order allowing her double costs against ICBC for its failure to accept an offer to settle that was below the trial award.
Before the trial, the parties went to mediation where the injured claimant offered to settle for $291,625.00. Just prior to trial, the injured claimant again offered to settle for a lower amount ($195,000.00). ICBC rejected both offers. A trial proceeded where the injured claimant was awarded $213,450.00 in damages by the trial judge. At trial, ICBC did not provide the court with any expert evidence regarding the injured claimant’s physical injuries relying on only 1 report from a psychiatrist who did not assess the injured claimant. Instead, ICBC’s strategy was to discredit and attack the injured claimant and her witnesses through cross examination.
The injured claimant relied on Hartshorne v. Hartshorne 2011 BCCA 29 which sets out factors to consider when awarding double costs. These factors include: the timing of the offer, the magnitude of the offer and the ability to evaluate the offer. An award of double costs is made as a “punitive measure against a litigant for that party’s failure, in all of the circumstances, to have accepted an offer to settle that should have been accepted”. In addition, an award of double costs is used to:
- to deter frivolous actions or defences;
- to encourage conduct that reduces the duration and expense of litigation and to discourage conduct that has the opposite effect;
- to encourage litigants to settle whenever possible, thus freeing up judicial resources for other cases;
- to have a winnowing function in the litigation process by requiring litigants to make a careful assessment of the strength or lack thereof of their cases at the commencement and throughout the course of the litigation; and
- to discourage the continuance of doubtful cases or defences.
ICBC argued that they could not make a reliable evaluation of the injured claimant’s offer to settle because they disputed liability (that the defendant was at fault). The trial judge rejected this baseless argument because the evidence was overwhelmingly against the defendant driver and not the injured claimant:
[39] The defendants made much of the liability issue, arguing that it was uncertain, but this was not a “light switch” case where liability was all or nothing. The defendant driver testified at discovery that he saw the plaintiff in the parking lot, and she had her back to him. He was also blind in one eye. These matters meant he had an enhanced duty to take care. Nonetheless, he struck the plaintiff with his vehicle. The best the defendants could have reasonably hoped for was an apportionment of liability, and even then – based on just the discovery evidence and not the trial evidence, I emphasize – liability would likely have been weighted substantially against the defendant driver.
In the end, the trial judge awarded double costs against ICBC stating:
[46] In summary, the defendants in this case had full information on which to assess the strength of the plaintiff’s claim and plenty of time to perform that assessment. While there were variables to take into account, these were not so extreme that a reasonably reliable assessment could not be made. Uncertainty as to outcome is inherent in any litigation. To repeat part of an earlier quote from Giles:
[88] Virtually all litigation comes with a degree of risk. When faced with settlement offers, [litigants] must carefully consider their positions.
[47] I conclude the offer made by the plaintiff was a reasonable one that ought reasonably to have been accepted. Accordingly, the plaintiff will have double costs from the time of service of the offer.