IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Gill v. McChesney, |
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2018 BCSC 1378 |
Date: 20180816
Docket: M101351
Registry: Vancouver
Between:
Vanessa Gill
Plaintiff
And
Kevin Shelby McChesney and GMAC Leasco Corporation Compagnie GMAC Location
Defendants
Before: The Honourable Mr. Justice Abrioux
Reasons for Judgment
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Counsel for the Plaintiff: |
M. Randhawa |
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Counsel for the Defendants: |
A. Ross |
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Place and Date of Hearing: |
Vancouver, B.C. July 5 and 13, 2018 |
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Place and Date of Judgment: |
Vancouver, B.C. August 16, 2018 |
[1] These reasons relate to the costs arising out of a personal injury action that proceeded to trial before Justice Sigurdson for several weeks between October 2015 and February 2016. The trial reasons for judgment are indexed at 2016 BCSC 1416 (the “Trial Reasons”).
[2] The issue of costs was directed to me by the Chief Justice in October 2017.
[3] The trial judgment was an award totalling $87,250 comprised of general damages of $80,000, an in-trust, housekeeping and childcare capacity award of $5,000 and special damages of $2,550.
[4] On September 30, 2015, approximately one week before the commencement of the trial the plaintiff made a formal offer to settle in the amount of $450,000. At the trial she sought damages in excess of $1 million.
[5] The Defendants made two formal Offers to Settle:
1. August 18, 2015, in the amount of $105,000 “new money”, plus costs (the “First Offer”); and
2. September 24, 2015, in the amount of $208,720 ”new money”, plus costs (the “Second Offer”).
[6] The Defendants now apply pursuant to Rule 14-1 and Rule 9-1 of the Supreme Court Civil Rules (SCCR) for the following orders:
(a) that they are entitled to the costs of this action following August 18, 2015, which is the date upon which the First Offer was made;
(b) in the alternative, that they are entitled to the costs of this action following September 24, 2015, which is the date upon which the Second Offer was made;
(c) that the Plaintiff be disallowed any costs following August 18, 2015 or alternatively September 24, 2015; and
(d) that the Plaintiff’s disbursements relating to Dr. Vondette be disallowed.
[7] For the reasons that follow the primary relief sought by the Defendants is granted.
[8] The plaintiff was involved in a motor vehicle accident on December 3, 2008. Liability for the accident was not in issue at the trial.
[9] The First Offer was delivered approximately 6 weeks before the trial and contained the following terms:
The defendants, Kevin Shelby McChesney and GMAC Leasco Corporation, offer to settle this action in its entirety on terms that upon acceptance of this offer to settle:
(a) the plaintiff will be entitled to payment by the defendants of $105,000.00 new money (the "Settlement Payment"); and
(b) the parties will be entitled to costs in accordance with this offer to settle (the "Settlement Costs").
The Settlement Payment:
(a) is offered after taking into account Part 7 benefits paid or payable, pursuant to section 25 of the Insurance (Motor Vehicle) Act, R.S.B.C. 1996, c. 231 (in respect of policies in force before June 1, 2007) and/or pursuant to section 83 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231 (in respect of policies in force on or after June 1, 2007);
(b) is offered after taking into account any advances paid to date;
(c) includes court order interest; and
(d) excludes the Settlement Costs.
On acceptance of this offer, the plaintiff agrees to execute and deliver a Full and Final Release in respect of Kevin Shelby McChesney, GMAC Leasco Corporation and the Insurance Corporation of British Columbia and to consent, by her solicitor, to a Consent Dismissal Order.
[10] The Second Offer, delivered approximately two weeks before the trial, was in identical terms but for the “Settlement Payment” being $208,720.
[11] The Plaintiff’s offer to settle made a week before the trial for $450,000 contained the statements:
The amount offered takes into account Part 7 Benefits paid or payable pursuant to Section 83 of the Insurance (Vehicle) Act. The sum of $450,000 excludes costs and disbursements…
If any aspect of the Plaintiff’s Offer to Settle is unclear, kindly contact the writer…
[12] The Trial Reasons contain numerous paragraphs which are essentially to the effect that the Plaintiff consciously or otherwise mislead the experts who assessed and provided reports on her behalf for use at the trial; specifically, they based their opinions as to the extent of the mild traumatic brain injury on the assumption that her account of the accident was accurate, when it was not.
[13] I will not set out the entirety of the Trial Reasons on this point, the important portions in my view commencing at paras. 106–123, but I would specifically highlight paras. 121–123:
[121] Is there an explanation why the plaintiff, as I find, apparently reported no loss of consciousness initially to Dr. Rubin and Dr. Matsyk and at least did not mention a loss of consciousness in the telephone report, but later by the time of the discovery had a belief that she blacked out during the accident? I think that if the plaintiff had felt she was unconscious or had blacked out for a period of time, even briefly, she would have likely reported that to Dr. Rubin, to the insurance company or to Dr. Matsyk on her first visit.
[122] Based on a consideration of all of the evidence, I find that at the time of the accident, the plaintiff was aware that she struck her head; she felt that she had suffered no loss of consciousness nor did she black out. I find that as time has gone on the plaintiff is consciously or unconsciously reconstructing events at the time of the collision in a way that supports a brain injury being the cause of some of her continuing difficulties, as it appears she appreciates the significance of being unconscious or blacking out to the determination of whether and the extent to which she suffered a mild traumatic brain injury.
[123] I think that her initial reports to her doctors about whether she suffered a loss of consciousness, even a transient one, are a more accurate recollection than her description much after the event. As a result I accord less weight to the plaintiff’s experts’ opinions that she suffered a mild traumatic brain injury with ongoing problems.[emphasis added]
[14] And I would also add the finding at para. 159 of the Trial Reasons:
[159] The plaintiff does not need to call witnesses to corroborate her case but in this case the only other witness who testified as to the effect of the injuries on the plaintiff was her husband. Although most of her observations and her husband’s were not contradicted, or successfully cross-examined about, I find that in the circumstances of this case I must approach their evidence with some caution. I conclude that as time has passed the Gills have tailored or allowed their recollection to become tailored particularly with respect to the nature of the plaintiff’s mental state during and immediately after the accident. They are not independent witnesses without an interest in the outcome of the case.
[15] The plaintiff correctly argues that the principles in Rule 9-1 of the SCCR are not engaged unless the applicant, in this case the defendants, establish that one or both offers comply with the Rule. The offers must also be clear and unambiguous: Park v. Donnelly, 2018 BCSC 219 at paras. 25 and 55.
[16] The plaintiff submits that the offers were unclear in that they:
(a) sought to settle the tort claim, that is the third party liability claim, along with the Part 7 claim against the Insurance Corporation of British Columbia (ICBC);
(b) on the first page, were to the effect that the settlement payment is offered “after taking into account Part 7 benefits paid or payable”, whereas the second page included a term that the plaintiff execute a release in favour of amongst others ICBC; and
(c) did not include a copy of the proposed release.
[17] I do not accept any of these submissions.
[18] First of all, there is nothing which, at law, precludes an offer to settle relating to both the tort and Part 7 claim.
[19] In fact, in Hall-Smith v. Yamelst, 2016 BCSC 325, Justice Dillon stated at paras. 10, 13 and 18:
[10] The offer is also not invalid because it is a global offer to settle claims from unrelated accidents, one of which was not the subject of this proceeding. Rule 9-1(1)(c) list three requirements for an “offer to settle”: the offer must (i) be made in writing by a party to the proceeding; (ii) be served on all parties of record; and (iii) contain the sentence maintaining the option to bring the offer to the attention of the court for consideration in relation to costs after judgment. The January offer met all of these requirements. The fact that the offer was made by parties and non-parties does not alter the fact that it was made by parties to the proceeding.
…
[13] Global offers have been considered valid under Rule 9-1, even where the parties are different, the actions were not heard together, or the offer included claims for which no proceeding had been commenced (Towson; Aspen Enterprises Ltd. v. Quiding, 2009 BCSC 50 (Aspen Enterprises Ltd.); Glen Labby Contracting Ltd. v. Advanced Energy Systems I Limited Partnership, 2009 BCSC 1501 (Glen Labby Contracting Ltd.); Jampolsky v. Shattler, 2013 BCSC 373 (Jampolsky)). The Court of Appeal in Roach expressed no opinion on whether global offers to settle multiple proceedings were valid under Rule 9-1 and left the issue for another day (at para. 53).
…
[18] The goal of providing trial judges with a broad discretion in relation to costs and offers to settle would be undermined by taking a narrow view of what offers can be considered under Rule 9-1. While that might have been necessary under the former Rule 37, the discretionary nature of Rule 9-1 suggests that the focus of the court should shift from whether an offer can be considered at all, to whether the offer ought to attract cost consequences. The purpose and enactment history of Rule 9-1 and judicial interpretation of that rule to date support the conclusion that global offers can be considered under the rule.
[20] Accordingly, the First and Second Offers were not invalid because they included the tort and Part 7 claims. Nor do I accept that the inclusion of ICBC in the release made either the First or the Second Offers ambiguous.
[21] The plaintiff relies on Park, which does not assist me in the circumstances of this case since:
(a) the offer in Park was found to be ambiguous because it was an “old money” offer and the Third Party, ICBC, sought to ascribe a different meaning to certain words in the offer than had been found to apply in a prior decision (at para. 35);
(b) in Park, the defendants and ICBC had difficulty in identifying the amounts that would be deducted from the “old money” offer; and
(c) the First and Second Offers in Ms. Gill’s claim were both expressed as “new money” offers.
[22] Accordingly, I conclude that there could be no ambiguity regarding the amounts that were being offered to Ms. Gill.
[23] Plaintiff’s counsel acknowledged that reference in the offers to a release of ICBC, standing alone, would not create confusion or ambiguity since “common sense” would dictate that past and future Part 7 claims were being released. But he submits that the ambiguity arises due to the words “after taking into account Part 7 benefits paid or payable”. Simply put, he says that the juxtaposition of these words on the first page with reference to a release of ICBC on the second creates “ambiguity at law”.
[24] In that regard, he acknowledges that there was no evidence from Ms. Gill, or anyone for that matter, that referenced confusion or ambiguity on this issue. It is, he says, purely a legal argument and he submits that there was no obligation on Ms. Gill or her counsel to contact defence counsel regarding this alleged ambiguity.
[25] I do not accept this argument. If there was any ambiguity regarding the words “after taking into account Part 7 benefits paid or payable”, then when the release referred to ICBC “common sense” would have made it abundantly clear that past and future Part 7 benefits were also being included in the offers.
[26] It is also ironic that the plaintiff says there was no reason for her to contact the defence about the alleged lack of clarity in the defence offers when her own offer to settle contained the words “If any aspect of the Plaintiff’s Offer to Settle is unclear, kindly contact the writer…”. The lack of contact, in my view, reinforces the fact that there was no ambiguity from the plaintiff’s perspective as to the terms of either the First or the Second Offers.
[27] Nor do I accept the argument that the First and Second Offers were unclear or invalid since they did not append a copy of the proposed release itself.
[28] This issue was considered in Bideci v. Neuhold, 2014 BCSC 1212 at paras. 42–49:
2. Was the Formal Offer ambiguous in that no release was attached?
[42] The Formal Offer provided:
On acceptance of this offer, the Plaintiff agrees to execute and deliver a Full and Final Release in respect of Carl Neuhold, South Coast BC Transportation Authority, and The Corporation of the District of West Vancouver and to consent, by his solicitor, to a Consent Dismissal Order.
[43] The Formal Offer did not contain a copy of the release referred to, nor was one ever provided by the defendants.
[44] At no time prior to the court raising this issue during submissions on May 26, 2014, did the plaintiff take the position that the Formal Offer was ambiguous, nor did he make any inquiry of defendants’ counsel regarding the terms of the proposed release.
[45] Relying on Wong-Lai, the plaintiff’s position is that there was ambiguity in the Formal Offer. He says that, taking into account Part 7 benefits paid or payable pursuant to s. 83 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231, “[t]ypically, ICBC’s form of release includes a release of Part 7 benefits as well as a release of the tort claim”.
[46] In my view, Wong-Lai is entirely distinguishable from the facts of this case. There, the plaintiff’s husband was killed in a pedestrian-motor vehicle collision. Mr. Justice Sewell, in a situation involving an offer to settle that referred to a release but where no form of release was included with the offer, concluded that the offer to settle was ambiguous.
[47] It is clear from that decision, however, that Sewell J. was cognizant of the fact that the plaintiff was also entitled to bring a claim against the defendants pursuant to the Family Compensation Act, R.S.B.C. 1996, c. 126, with respect to the death of her husband. This was not addressed in the offer, particularly in the reference to the requirement of a release. Accordingly, there was ambiguity in the words “in respect of the defendants”, as set out in the reference to a release in the offer.
[48] There is no such ambiguity in this case. The Formal Offer is clear and unambiguous. It identifies the parties to be released. ICBC is not mentioned.
[49] Insofar as the alleged ambiguity is concerned, this case is essentially analogous to Ballen v. Ballen, 2000 BCSC 261. At paras. 17-22, Skipp J. stated:
[17] Counsel for the defendant referred to Falls v. Falls (1995), 13 B.C.L.R. (3d) 369. In that case Vickers J. referred to his decision in Morck v. Soragnese (1994), 87 B.C.L.R. (2d) 263 and to a passage therefrom at page 270 as follows:
The test of whether there has been compliance lies in the answer to two simple questions. Could the person receiving the offer have been in any doubt as to its terms. If so, was there a burden on that person to clarify its terms prior to acceptance.
[18] I note that the defendants made an offer to settle herein and no objection was made by the plaintiff at that time to that offer being ambiguous and on the contrary the plaintiff speedily countered with an offer to settle [three weeks later], escalating from $225,000.00 to $400,000.00.
[19] Counsel for the defendants rely on Fieguth v. Acklands Limited (1989), 37 B.C.L.R. (2d) 62. For the proposition that a defendant’s offer to settle which stipulates that the plaintiff is to execute a full and final release of claim which offer also contains a reference to a consent order, does not invalidate an offer to settle.
[20] In Fieguth McEachern CJBC concerning disagreements with respect to documentation consequent upon a settlement wrote, “In such cases the settlement will be binding if there is agreement on the essential terms”. He continued, “When disputes arise in this connection the question will seldom be one of repudiation as the test cited above is a strict one, but whether a final agreement has been reached which the parties intend to record in formal documentation”.
[21] Counsel for the defendants then referred to Carlson v. Stewart, [1999] B.C.J. No. 241, (BCSC) wherein Taylor J. as he then was set out the approach to be taken to determine whether an offer to settle is ambiguous. The germane excerpt from his reasons is as follows:
The offer to settle by a defendant must be unambiguous and this court should be reticent to conclude ambiguity particularly with that issue is only raised by the plaintiff after the trial.
[22] Here the plaintiff, through her counsel, made no inquiry as to the terms of the offer nor did her counsel complain about ambiguities. As observed by Boyle J. in Keller v. Whyte, [1996] B.C.J. No. 705 (BCSC) at paragraph 11…
The strength goes out of the protest when no response was made at all.
To that observation I add, “when the only response is a counter offer”.
[Emphasis added.]
See also: Gill v. Gill, 2004 BCSC 1261; Anderson v. Routbard, 2007 BCCA 193 at para. 16, cited in Gichuru v. Pallai, 2012 BCSC 1316 at para. 18.
[29] Counsel for the plaintiff seeks to distinguish Bideci on the basis that ICBC was not referred to as being subject to the release, and she relies on Wong-Lai v. Ong, 2012 BCSC 1569, in that regard. The offer was clear in Bideci, in part, because it was evident that ICBC was not included in the release. The same is the case here because it is clear ICBC is included. This is not the case, as in Wong-Lai, where a separate claim under the Family Compensation Act, R.S.B.C. 1996, c. 126, was not addressed.
[30] Accordingly, I conclude that the First and the Second Offers are valid.
[31] Rule 9-1(4) provides:
Offer may be considered in relation to costs
(4) The court may consider an offer to settle when exercising the court's discretion in relation to costs.
[32] The purpose of Rule 9-1(4) was summarized in C.P. v. RBC Life Insurance Company, 2015 BCCA 30 at paras. 94–95:
[94] The underlying purpose of the offer to settle rule was set out in Hartshorne:
[25] An award of double costs is 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. Litigants are to be reminded that costs rules are in place “to encourage the early settlement of disputes by rewarding the party who makes a reasonable settlement offer and penalizing the party who declines to accept such an offer” (A.E. v. D.W.J., 2009 BCSC 505, 91 B.C.L.R. (4th) 372at para. 61, citing MacKenzie v. Brooks, 1999 BCCA 623, Skidmore v. Blackmore (1995), 2 B.C.L.R. (3d) 201 (C.A.), Radke v. Parry, 2008 BCSC 1397). In this regard, Mr. Justice Frankel’s comments in Giles are apposite:
[74] The purposes for which costs rules exist must be kept in mind in determining whether appellate intervention is warranted. In addition to indemnifying a successful litigant, those purposes have been described as follows by this Court:
· “[D]eterring frivolous actions or defences”: Houweling Nurseries Ltd. v. Fisons Western Corp. (1988), 37 B.C.L.R. (2d) 2 at 25 (C.A.), leave ref’d, [1988] 1 S.C.R. ix;
· “[T]o encourage conduct that reduces the duration and expense of litigation and to discourage conduct that has the opposite effect”: Skidmore v. Blackmore (1995), 2 B.C.L.R. (3d) 201 at para. 28 (C.A.);
· “[E]ncouraging litigants to settle whenever possible, thus freeing up judicial resources for other cases: Bedwell v. McGill, 2008 BCCA 526, 86 B.C.L.R. (4th) 343 at para. 33;
· “[T]o have a winnowing function in the litigation process” by “requir[ing] 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 by “discourag[ing] the continuance of doubtful cases or defences”: Catalyst Paper Corporation v. Companhia de Navegação Norsul, 2009 BCCA 16, 88 B.C.L.R. (4th) 17 at para. 16.
[95] A plaintiff who rejects a reasonable offer to settle should usually face some sanction in costs. To do otherwise would undermine the importance of certainty and consequences in applying the Rule: Wafler v. Trinh, 2014 BCCA 95 at para. 81. The importance of those principles was emphasized by this Court in A.E. Appeal at para. 41:
[41] This conclusion is consistent with the importance the Legislature has placed on the role of settlement offers in encouraging the determination of disputes in a cost-efficient and expeditious manner. It has placed a premium on certainty of result as a key factor which parties consider in determining whether to make or accept an offer to settle. If the parties know in advance the consequences of their decision to make or accept an offer, whether by way of reward or punishment, they are in a better position to make a reasoned decision. If they think they may be excused from the otherwise punitive effect of a costs rule in relation to an offer to settle, they will be more inclined to take their chances in refusing to accept an offer. If they know they will have to live with the consequences set forth in the Rule, they are more likely to avoid the risk.
[33] Rule 9-1(5) provides a broad range of options available to the court in circumstances where an offer to settle has been made which include:
(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 ;
…
(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 the delivery or service of the offer to settle.
[34] Rule 9-1(6) provides:
(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.
[35] The plaintiff submits that neither of the defendants’ formal offers to settle were reasonable to accept in all of the circumstances. That is because she was confident she had a meritorious claim for substantial damages, including loss of future earning capacity. She submits that the experts who she retained to assess her confirmed the serious nature of her injuries and the ongoing effect they would have on all aspects of her life.
[36] She also argues that when the Trial Reasons are examined in context this is not a case, as alleged by the defendants, of her intentionally misleading the experts, but rather of her having a real belief as to what had occurred in the aftermath of the accident and the development and duration of her injuries.
[37] She goes further by submitting that it was not until during the trial that her credibility was seriously questioned.
[38] The plaintiff submits that she should receive her costs until the First Offer, recognizing that there was no material change in the information she had available to her to assess the offers between the dates of the First and Second Offers. She submits that each party should bear their own costs thereafter.
[39] The defendants’ position is that based on the application of the usual rules, they should recover their costs after the date of the First Offer and the court should disallow the costs after that date.
[40] They submit it was the Plaintiff’s conduct that led to the trial proceeding and the costs of trial being incurred. In other words, this was not a situation where one party quantified the award more accurately than the other. To the contrary, this was a case where the plaintiff attempted to prove a set of facts, and the existence of ongoing symptoms, which the defence was successful in disproving. They say that the plaintiff’s claim failed, in large part, because she was found not to be credible or reliable.
[41] Whether these offers ought reasonably to have been accepted is not viewed with hindsight and in light of the actual amount of the judgment. The circumstances at the time of the offers is what determines whether they should have been accepted by the plaintiff: Hartshorne v. Hartshorne, 2011 BCCA 29 at para. 27.
[42] It is clear that the plaintiff’s ability to be successful in the manner she considered appropriate, was heavily dependent on her credibility. The expert medical evidence which supported her claims and which linked them causally to the accident depended to a great extent on her account of her injuries and resulting disabilities in the time frame following the accident to the trial.
[43] I do not accept the plaintiff’s submission that credibility only really became an issue during the trial. The different approaches taken by the plaintiff on the one hand and the defence on the other, as represented by the amounts sought at the trial, were obviously heavily dependent on her credibility, an issue clearly recognized by the trial judge.
[44] I have referred to certain extracts from the reasons for judgment above but emphasize:
(a) “I find that as time has gone on the plaintiff is consciously or unconsciously reconstructing events at the time of the collision in a way that supports a brain injury being the cause of some of her continuing difficulties, as it appears she appreciates the significance of being unconscious or blacking out to the determination of whether and the extent to which she suffered a mild traumatic brain injury”; and
(b) “I conclude that as time has passed the Gills have tailored or allowed their recollection to become tailored particularly with respect to the nature of the plaintiff’s mental state during and immediately after the accident”.
[45] At the time the First Offer was received, the plaintiff knew or should have known that her experts’ opinions were based in large part on the history she had provided to them. She was also aware of the opinions of the defence experts.
[46] As Justice Bruce noted in Dennis v. Fothergill, 2014 BCSC 452 at paras. 26 and 28:
[26] The plaintiff and her counsel were aware of all the expert and lay evidence to be called at trial and had an opportunity to consider the defendant’s offer in light of this evidence. While the expert medical evidence to be tendered at trial by the plaintiff supported her claims, and the defendant intended to lead contradictory evidence from only one medical expert, it should have been clear to the plaintiff that her entire claim was heavily dependent upon her credibility. The medical experts all relied upon the plaintiff’s self-report regarding her past injuries and the injuries suffered after the accident. Their medical diagnosis and findings regarding the causal connection between her injuries and the accident were almost entirely based on her subjective assessment of pain and the past history she reported.
…
[28] An assessment of credibility is a subjective exercise that is ultimately based on the entire body of evidence before the Court. In most circumstances a plaintiff cannot be expected to know in advance how the Court might assess her credibility in the witness box. However, in this case the plaintiff’s counsel would undoubtedly have explained the risks attendant upon proceeding to trial where the success of the claim is so highly dependent upon the Court’s assessment of credibility…
[47] The plaintiff’s expert’s reports contained a fundamental flaw that was created by the plaintiff herself “consciously or unconsciously”. I conclude that both the First and Second Offers were ones that ought reasonably to have been accepted.
[48] The trial judge’s award was approximately $87,500 with costs to be spoken to.
[49] The First Offer was $105,000, the Second was $208 720. Both were “new money”.
[50] Accordingly, this factor favours the defendants.
[51] While there is an obvious financial disparity between the plaintiff’s circumstances and that of the defendants’ insurer, that is not a relevant factor in this case: Wepryk v. Juraschka, 2013 BCSC 804 at para. 15.
[52] I find that both the First and the Second Offers were genuine attempts by the defendants to settle the plaintiff’s claims and avoid a trial.
[53] I note that the plaintiff did receive much more than a nominal or minor amount in her favour, but I also recognize that depriving her of her costs after the First Offer and awarding the defendants their costs as they seek will likely mean that her actual recovery will be very modest. And yet, as Justice Bruce noted in Dennis at para. 36:
[36] In terms of the other relevant factors, I find there are few mitigating circumstances that have a significant impact on the exercise of discretion in this case. The offer ought reasonably to have been accepted and the judgment at trial was far less than the settlement offer. These are precisely the circumstances sought to be avoided by Rule 9-1(4). The exercise of discretion regarding costs must encourage settlements before trial and minimize any waste of limited court resources.
[54] When I apply the legal framework to which I have referred and consider all the relevant factors, the real issue in my view is whether the plaintiff should pay the defendants’ costs after August 18, 2015, or whether the parties should bear their respective costs from that date onwards.
[55] While not entirely analogous, this case does have certain similarities to those in Dennis, where the finder of fact concluded the plaintiff was untruthful and/or misled experts, as opposed to the situation where the plaintiff cannot be expected to know in advance how the court might assess his/her credibility in the witness box.
[56] Here, the plaintiff did not accept a reasonable offer and the award at trial was significantly less than either the First or the Second Offers.
[57] As was stated in Luckett v. Chahal, 2017 BCSC 1983 at para. 47:
[47] But what happened here is that the plaintiff, well aware of the significant credibility issues at stake, chose to gamble or “take his chances” by going to trial and lost. He should live with the consequences which Rule 9-1(4) seeks to avoid: Wafler v. Trinh, 2014 BCCA 95 at para. 81.
[58] In my view, that is what occurred in this case.
[59] Accordingly, the plaintiff is entitled to her costs and disbursements at Scale B to August 18, 2015, and the defendants to their costs and disbursements at Scale B thereafter.
[60] This issue concerns whether the plaintiff, as part of the costs order I have made in her favour, should recover the disbursement relating to Dr. Vondette.
[61] The Trial Reasons state at paras. 138 and 172:
[138] Dr. Vondette overlooked a test by Dr. Woolfenden in 2010 where the plaintiff scored 30/30 on the MoCA test, a result that Dr. Vondette apparently had in his possession. Overall, I found Dr. Vondette to act as an advocate for the plaintiff’s position. I allowed Dr. Vondette’s report in evidence, over an objection before he testified that it was advocacy. I ruled that it was admissible but the objection went to the question of weight. Nevertheless, after hearing his evidence I found a strong element of advocacy in his evidence (as well as his report) that affects the weight to be given to his opinion. I do not place weight on the opinion of Dr. Vondette on the significance of the cognitive testing that was done.
…
[172] While the evidence persuades me that the plaintiff was injured in the accident and suffered a head injury, I am not persuaded that I can give much weight to the opinions of the experts retained and called by the plaintiff’s counsel to the effect that the plaintiff suffered a mild traumatic brain injury. The difficulty is that in the case of each of the reports I find that the experts to some significant degree relied on an inaccurate history of whether the plaintiff suffered a loss of consciousness or a disruption of mental awareness in and following the accident. Dr. Hunt considered the fact that Ms. Gill had a transient loss of awareness for an undetermined length of time was the most important piece of information upon which he relied. Dr. Cameron, the neurologist, who saw her three and three-quarter years post-accident, said that Ms. Gill reported that her first recall after the impact is hearing voices at the door of the vehicle which I find is not an accurate statement of the plaintiff’s actual recollection. The psychiatrist Dr. Lu’s opinion was based on her reporting a loss of consciousness in the accident which I find did not occur. As to Dr. Vondette, I find that notwithstanding his evidence that he determined from his questioning that the plaintiff had a patchy memory of the accident, I cannot place any significant weight on his opinion. The plaintiff’s counsel said that Dr. Vondette emphasized the importance of the questions to ask when eliciting a history from the patient and explained in detail how he came to the conclusion that “altered level of consciousness” had been established. He explained on cross-examination that the plaintiff had a “patchy memory.” I did not accept his opinion of the plaintiff’s altered state of consciousness and found his conclusion more argument than opinion.
[62] The defendants submit this disbursement should be disallowed in that:
(a) the report was not reasonable or necessary;
(b) it was not helpful at trial;
(c) it was, at best, inaccurate with respect to the Dr. Woolfenden 30/30 testing and at worse deliberately misleading; and
(d) it was advocacy as found by the trial judge.
[63] The plaintiff’s position is that the report was necessary or reasonable in that only a physiatrist could comment on the impact on employment of a mild traumatic brain injury, not a neurologist. This submission is supported to some extent by Dr. Hunt in two of his reports—the second contemporaneous in timing with Dr Vondette’s report—recommending the need for an assessment by a physiatrist. And yet it cannot be forgotten that those reports were based on what the trial judge found to be in part an inaccurate history of events told by the plaintiff.
[64] I have real concerns from a proportionality perspective about the necessity or reasonableness of Dr. Vondette’s report bearing in mind the fact that the plaintiff also obtained assessments from Dr. Hunt (a neurosurgeon), Dr. Cameron (a neurologist) and Dr. Lu (a psychiatrist).
[65] The defendants do not submit that one of the assessments of Dr. Hunt or Dr. Cameron was unreasonable. For my part, however, I have to observe that in a case such as this, the need for a neurosurgeon’s assessment in addition to one from a neurologist is, quite frankly, a mystery to me. Viewed from this context, it is perhaps not surprising that the court is often faced with situations where a bill of costs is greater than the award itself.
[66] To return to Dr. Vondette, I am of the view that the principal issue is the one identified by Justice Williams in Brach v. Letwin, 2015 BCSC 2081, where he declined to award special costs in relation to an expert whose conduct was wanting but did disallow the disbursement, stating at paras. 54–56:
[54] At the conclusion of the appearance of Mr. McNeil, I quite made clear to him that the manner in which he had prepared his evidence and testified at trial was not acceptable. The situation is complicated by the fact he has, on two previous occasions, had his evidence ruled inadmissible or been the subject of critical commentary by judges of the court. All of that forms the backdrop to the position taken by defence counsel.
[55] I do not consider that the matter warrants this Court making an order of special costs against the plaintiff. There is nothing to cause me to conclude that plaintiff’s counsel conducted himself in a manner that was anything other than proper. It seems to me that it is Mr. McNeil whose conduct is been found wanting. He has been admonished; I will of course order that the disbursements relating to his involvement are disallowed; finally, I expect that the cumulative effect of his appearances will have a salutary effect on the approach he brings to future forensic endeavors. Certainly, he is now someone whose credentials as an expert witness would seem to be somewhat tarnished.
[56] In the result, the disbursements related to Mr. McNeill’s evidence are disallowed; there will be no order for special costs in respect of this witness.
[67] While I recognize that Dr. Vondette did not receive the same admonishment at the conclusion of his evidence in this case as occurred in Bratch, I conclude that this disbursement should be disallowed for the reasons submitted by the defence in paragraphs 62(b) to (d) above.
[68] The plaintiff is entitled to her costs and disbursements at Scale B to August 18, 2015, and the defendants to their costs and disbursements at Scale B thereafter.
[69] The disbursement relating to Dr. Vondette is disallowed.
“Abrioux J.”