The three-and-a-half-hour window to accept the formal settlement offer was insufficient
In a recent ruling, the BC Supreme Court has denied awarding double costs to the defendant in a personal injury case, following a failed settlement offer.
The ruling followed a six-day trial on liability and damages, during which the court found that the plaintiff had not established liability. Two years later, the parties submitted arguments on costs, with the defendant seeking double costs and the plaintiff requesting that each party bear its own costs.
The case stemmed from an incident when the plaintiff and her son were struck by a vehicle driven by the defendant. The plaintiff claimed she was hit while walking along the road, while the defendant maintained that the plaintiff suddenly appeared in her path, making the collision unavoidable. The court sided with the defendant's account.
The plaintiff sustained a dislocated right shoulder and twisted arm muscles but did not suffer severe injuries. At trial, she claimed ongoing pain and impairment. However, she was not employed at the time of the injury or trial and had no immediate plans to work, although she expressed a desire to open a daycare.
The parties engaged in mediation but failed to settle. Subsequent settlement offers were exchanged, with the plaintiff proposing $145,000 and the defendant offering progressively lower amounts, culminating in a formal offer of $58,688, which the plaintiff did not accept.
The Supreme Court reviewed the defendant’s request for double costs under Rule 9-1, which allows for such awards in exceptional circumstances, including when a plaintiff's claim is dismissed entirely after rejecting a settlement offer. The court considered whether the defendant's offer was reasonable and whether the plaintiff had adequate time to consider it.
The court found the three-and-a-half-hour window to accept the formal offer was insufficient, even when considering the context of prior informal offers. The plaintiff required more time to consult with her counsel and family, particularly given her limited English proficiency and stay-at-home parent responsibilities.
The court also evaluated the financial circumstances of the parties. The plaintiff had no personal income and functioned as a stay-at-home parent, while the defendant was insured by ICBC. The court concluded that the financial disparity did not significantly affect the costs decision.
The court addressed the plaintiff's argument that the defendant's delay in seeking a costs order should result in each party bearing their own costs. The court acknowledged that the delay, while not ideal, did not significantly prejudice the plaintiff in terms of responding to the costs application. It noted that both parties could seek an order following the trial and that the delay provided the plaintiff with a temporary financial benefit.
Ultimately, the court denied the request for double costs. Each party was ordered to bear their own costs for the application.
