COURT CASES on the RISKS of GOING to TRIAL
An award of costs by the Court is discretionary, as the Court can take many factors into account when arriving at their decision. Generally speaking, if you are unsuccessful at trial, or if you are successful yet do not beat ICBC’S last formal settlement offer, then you are exposing yourself to potentially serious costs consequences.
Rules 9-1(5) and (6) of the British Columbia Supreme Court Civil Rules outline the options at a court’s disposal with respect to awarding costs, and what factors they consider when doing so.
(5) In a proceeding in which an offer to settle has been made, the court may do one or more of the following:
(a) deprive a party of any or all of the costs, including any or all of the disbursements, to which the party would otherwise be entitled in respect of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle;
(b) award double costs of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle;
(c) award to a party, in respect of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle, costs to which the party would have been entitled had the offer not been made;
(d) if the offer was made by a defendant and the judgment awarded to the plaintiff was no greater than the amount of the offer to settle, award to the defendant the defendant’s costs in respect of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle.
(6) In making an order under subrule (5), the court may consider the following:
(a) whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered or served or on any later date;
(b) the relationship between the terms of settlement offered and the final judgment of the court;
(c) the relative financial circumstances of the parties;
(d) any other factor the court considers appropriate.
WINNING YOUR CASE, YET OWING ICBC MONEY
In Dempsey v Oh, ICBC’S lawyer made a formal settlement offer of $165,000, however this offer was rejected by the Plaintiff. The Plaintiff was successful at trial, but was only awarded $20,000. As a result of not beating ICBC’S offer, the Plaintiff was required to pay ICBC’S costs, meaning that the Plaintiff, although successful at trial, ended up owing ICBC more money than was recovered at trial.
 The fact that a second offer was made, does not mean that a prior offer is to be ignored: ICBC v. Patko, 2009 BCSC 578 (CanLII), 2009 BCSC 578. The reasonableness of the decision of the plaintiff not to accept the offers is to be assessed on the basis of the state of affairs existing at the time of the respective offers.
 The plaintiff also submitted that if he is denied his costs, his modest recovery will be eradicated and that if he is ordered to pay the defendant’s costs he will end up owing it money. The plaintiff says that was not the intent of the Rules. I do not agree. It is not the court’s function to ensure that a plaintiff makes a net recovery from an action when it has ignored a reasonable offer. That would defeat the purpose of the Rule and does not accord with common sense.
In Miller v Boughton, the Plaintiff failed to beat ICBC’S final offer before trial, and was awarded only $3,880. She was ordered to pay ICBC’S costs and disbursements, which came to $42,000.
 I am of the view that the first offer, the one made December 23, 2008, ought to have been reasonably accepted, at least by June of 2009. By June of 2009, the plaintiff could have had a reasonable opportunity to seek another opinion as to the origin of her pericarditis as it related to the motor vehicle accident.
 There was an opportunity to accept the defendant’s last offer of $65,000.00 just before trial. At this time, both the plaintiff and the defendant knew the plaintiff had no medical evidence to support her alleged injuries and medical conditions.
 The final judgment was substantially less than the offers presented by the defendant to the plaintiff. The jury assessed damages in the amount of $7,600.00. This is before discounting the amount for liability. The plaintiff gambled that she could go before the jury without medical evidence and be awarded amounts larger than any of the offers made by the defendant.
 On the other hand, the plaintiff’s financial condition is modest. At the time of trial, this Aboriginal woman was not employed. Throughout most of her adult life she was employed. At the time of trial, she was attending university. She owns a residence on the Simpcw First Nation Reserve. She also owns an automobile.
 I appreciate that the plaintiff’s health problems, from which the plaintiff suffered initially, might have caused a reasonable person to link them to the motor vehicle accident. However, upon learning that they were not linked to the motor vehicle accident, common sense should have caused the plaintiff to consider her chances of beating any of the offers put to her by the defendant.
In Chen v Beltran, the Plaintiff’s claim was dismissed at trial, and the Plaintiff was ordered to pay ICBC $75,000 in costs and disbursements, despite the crippling effect this would have on the Plaintiff’s family.
 The first basis upon which the plaintiff says the defendants should be denied costs is that Allan suffered significant injuries in the Accident and will require ongoing medical and psychological care throughout his life. His ongoing care will involve significant cost to both his parents. Allan’s parents have already incurred substantial debt to prosecute the lawsuit, have limited financial resources and will have difficulty providing for Allan’s future care even if they are successful on this application. The plaintiff says that an order for costs will financially “cripple” the family. While I have great sympathy for Allan’s parents the case law is clear that the financial circumstances of a litigant, standing alone, are not to be taken into consideration as a factor in the awarding of costs.
 In Robinson v. Lakner 1998 CanLII 5206 (BC CA), (1998),159 D.L.R. (4th) 191, 107 B.C.A.C. 64 (C.A.) the Court of Appeal allowed an appeal from a decision by the trial judge to limit costs awarded to a successful defendant to $1,500 because of the plaintiff’s “difficult financial circumstance”. The Court held, at para. 5, that “financial hardship in itself is not a sound basis for departing from the usual rule with respect to costs”.
 The principle which has emerged from recently decided authorities is that, in general, the unfortunate personal circumstances and characteristics of a litigant are not to be taken into account by the court in exercising its discretion in making an award of costs. Such personal circumstances would encompass a party’s needy financial situation (Brown v. Black Top Cabs Ltd. 1997 CanLII 4042 (BC CA), (1997), 43 B.C.L.R. (3d) 76 (C.A.); Zelenski Estate v. Fairway 1998 CanLII 4229 (BC CA), (1998), 60 B.C.L.R. (3d) 76 (C.A.); Churchland v. Gore Mutual Insurance Co. (unreported), September 23, 1999, No. SO-9912, Vancouver (S.C.). There is also authority that the financial hardship of a litigant who would otherwise be responsible to pay costs should not, standing alone, justify a departure from the ordinary rule. (Robinson v. Lakner 1998 CanLII 5206 (BC CA), (1998), 159 D.L.R. (4th) 191 (B.C.C.A.)).
 To conclude otherwise would undermine the rationale underlying Rule 14-9 and would likely lead to the promotion of litigation rather than to promote the “winnowing” function described by Hall J.A. in Catalyst Paper. It would lead to a collapse of the general principle discussed in the authorities and result in the unacceptable proposition that costs in each case would be measured not by a party’s success but by the personal financial circumstances of the litigants.
PAYING DOUBLE COSTS
In Brooks v Gilchrist, the Plaintiff’s claim was dismissed at trial. The Plaintiff was then hit with a double costs penalty for taking an “extremely weak” case to trial.
 In terms of the relationship between the terms of settlement offered and the final judgment of the court, the offer was better than the result, but the offer was only for the sum of $1 plus disbursements. Ordinarily I would think that a nominal offer of one dollar may not attract orders for double costs but I know that in some cases even nominal offers may attract orders of double costs. See for example MacKinlay v. MacKinlay Estate, 2008 BCSC 1570 (CanLII), 2008 BCSC 1570; Ludwig v. Bos, 2010 BCSC 695 (CanLII), 2010 BCSC 695.
 This is a case where there had been expenditures on medical and expert reports. I think that where it becomes clear that liability will be extremely difficult to establish a nominal offer that has the effect of allowing the plaintiff to recover disbursements and avoid liability for the other party’s disbursements may nevertheless be a substantial offer.
 In considering whether the offer ought reasonably to have been accepted, I think it was quite clear that the plaintiff’s original theory that she had been sideswiped as a result of the collision involving the other two adjacent cars was not maintainable once each side had filed their expert reports. This was not merely a case where the plaintiff had a claim that was difficult to prove at trial; this was a unique case where on the evidence available to her before trial the plaintiff should have realized that she did not have a realistic position on liability.
 The relative financial circumstances of the parties are a factor that weighs against awarding double costs in this case, although in appropriate circumstances double costs clearly may be awarded to ICBC.
 I do not think the fact that the defendant drivers may have been dishonest with ICBC about the circumstances involving the collision between the Beynon and the Gilchrist vehicle has any bearing on whether costs should be awarded to other parties, the owner of the vehicle and ICBC.
 Although it may have been difficult for the plaintiff to reconsider her position after the experts’ reports were exchanged, it was incumbent on her, notwithstanding any earlier settlement offer, to make a realistic assessment of her prospects of success in the litigation.
 In the circumstances, I think that the ICBC defendants should be awarded costs with respect to the main action. I have estimated the main action consumed 90% of the time at trial. The defendants were clearly successful and, in my view, it is not an appropriate order for each side to bear its own costs.
 In terms of whether I should award double costs, I think that, in exercising my discretion, the offer reasonably ought to have been accepted in the days prior to trial. Although the offer was modest, the circumstances at that time were clear that her case was extremely weak, she would have avoided liability for disbursements, and in fact recovered the disbursements she had incurred.
 Because ICBC had denied coverage, the defendant James Gilchrist, appeared on his own behalf and attended the proceedings at trial. Essentially, he left it to Mr. Hulley to defend the plaintiff’s claim at trial. As to costs, he is entitled to claim them given that the action against him was dismissed. Mr. Gilchrist took a relatively modest position, seeking only costs to compensate him for some of his lost time in attending trial. In the circumstances, I make a lump sum order for costs in his favour of $1,750.
 I award costs to the plaintiff for the second action up to seven days after the offer to settle and thereafter ICBC is entitled to ordinary, but not double, costs. For purposes of apportionment of costs between the actions, the main action took up 90% of the time at trial.