IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Lafond v. Mandair,

 

2017 BCSC 1081

Date: 20170627

Docket: 51172

Registry: Vernon

Between:

Larry Lafond

Plaintiff

And

Sachan Mandair, Arif Dhalla and
Khrys McArdle

Defendants

Before: The Honourable Mr. Justice Dley

Reasons for Judgment on Costs

Counsel for the Plaintiff:

J. Cotter

Counsel for the Defendants:

S. Driver

Place and Date of Hearing:

Vernon, B.C.

June 22, 2017

Place and Date of Judgment:

Vernon, B.C.

June 27, 2017

 

[1]             The plaintiff received an award greater than his offer to settle and seeks double costs, including double disbursements.

[2]             For the reasons that follow, I decline to award double disbursements.

Background Facts

[3]             The plaintiff was injured in a motor vehicle accident. Liability was admitted and the matter was set for trial. The plaintiff formally offered to settle his claim for $300,000. The offer was not accepted. At trial, the plaintiff was awarded in excess of $343,000: Lafond v. Mandair, 2017 BCSC 523.

[4]             The defence has agreed that the plaintiff is entitled to double costs for tariff items incurred as of seven days following the formal offer, but does not concede that double disbursements are warranted.

[5]             The plaintiff expended about $20,000 in disbursements during the relevant period of time and seeks an award of double disbursements totalling about $40,000.

[6]             In Moore v. Kyba, 2012 BCSC 577, at para. 8, the court ruled that there was no discretion to award double disbursements after the delivery of an offer to settle.

[7]             In Gonzales v. Voskakis, 2013 BCSC 675, at paras. 58-65, the court declined to follow Moore and ruled that costs included disbursements.

Discussion

[8]            The provisions governing the award of costs where an offer to settle has been made are set out in Rule 9-1 of the Supreme Court Civil Rules, B.C. Reg. 168/2009 [Civil Rules]. The court may consider an offer to settle when exercising its discretion to award costs. The cost options are set out in Rule 9-1(5

Cost options

(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.

[My emphasis]

[9]             The applicable provision in these circumstances is subsection (b), where the plaintiff has exceeded the offer to settle.

[10]         The lack of clarity in the wording used leaves much to be desired. The comments of Madam Justice Fitzpatrick in Gonzales, at para. 67, bear repeating:

[67]      I acknowledge that the wording of Rule 9-1(5), in its reference to “disbursements” in subcategory (a) without an accompanying reference to “disbursements” in subcategory (d), is awkward and confounding. In my view, however, the fundamental purpose of the Rule — which, as stated by the Court of Appeal in Kendall and Skidmore, is to compensate for all “costs”, including disbursements — has not changed. One can only hope for some clarity on this issue by possible amendments to Rule 9-1(5).

[11]         But for the decision in Gonzales, there would be no question that there could be no award for double disbursements because of the prior ruling in Moore.

[12]         Gonzales is a compelling decision because it levels out the award of costs so as to include disbursements that are available under the other provisions of Rule 9-1(5). However, Moore is directly on point – double disbursements are not available.

[13]         Moore is specific to the issue of double disbursements. Madam Justice Brown determined that the absence of any reference to disbursements in subsection (b) precluded an award for double disbursements. A further analysis of that provision confirms the same outcome.

[14]         Double costs may be awarded for some or all steps taken after delivery of the offer to settle. A step in the proceeding is a formal step that moves the action forward: Canadian National Railway Company v. Chiu, 2014 BCSC 75 at para. 7.

[15]         Incurring a disbursement is not a formal step as contemplated by the Civil Rules.

[16]          I, therefore, conclude that under Rule 9-1(5)(b), double disbursements are not to be awarded as part of double costs. Thus, a successful offer to settle can be rewarded with an entitlement to double costs for tariff items, together with actual and reasonable disbursements.

[17]         The defendants have been successful in this application and are entitled to their costs.

“S.D. Dley J.”

DLEY J.