2012 BCSC 99 Ward v. Klaus

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	Ward v. Klaus,
	2012 BCSC 99

Date: 20120125

Docket: M034910

Registry: Vancouver

Between:

Jodie Irene Ward

Plaintiff

And

Adolf Klaus

Defendant

Before: The Honourable Mr. Justice Goepel

Supplementary Reasons to: Supreme Court of British Columbia,
August 27, 2010, Ward v. Klaus, 2010 BCSC 1211, VA M034910

Supplementary Reasons for Judgment

Counsel for the Plaintiff:	V.J. LeBlanc
Counsel for the Defendant:	W.M. Finch, Q.C.
Place and Date of Hearing:	Vancouver, B.C. December 16, 2011
Place and Date of Judgment:	Vancouver, B.C. January 25, 2012

INTRODUCTION

[1] Following a 14-day trial, Justice Rice, in reasons indexed at 2010 BCSC 1211, awarded the plaintiff damages totalling $433,103.63.

[2] The trial commenced on June 7, 2010. On May 3, 2010, the defendant made a formal offer to settle the plaintiff’s claim for $493,234.04 (the “First Offer”). On June 4, 2010, the defendant made a formal offer to settle the plaintiff’s claim for $595,000 (the “Second Offer”). Both offers were made pursuant to the provisions of Rule 37B.

[3] The defendant now seeks an order that the plaintiff should be deprived of her costs from the date of the First Offer, and the defendant should be entitled to his costs thereafter. In the alternative, the defendant submits that the plaintiff should be deprived of her costs from the date of the Second Offer, and the defendant should be entitled to his costs thereafter.

[4] As Justice Rice has now retired, the Chief Justice appointed me, pursuant to Rule 23-1(10), to hear this application.

BACKGROUND

[5] The plaintiff was injured in a motor vehicle accident on February 4, 2002. The defendant admitted liability. The trial was set to commence on Monday, June 7, 2010.

[6] On May 3, 2010, the defendant’s counsel faxed the First Offer to the plaintiff’s counsel. The defendant offered to pay Ms. Ward $493,234.04 together with costs to the date of delivery of the offer. The First Offer was open for acceptance up to 4:00 p.m. on the last business day before the first day of trial.

[7] I note that by May 3, 2010, the parties had exchanged expert reports and the expert evidence ultimately adduced at the trial consisted of the reports available to the parties as of May 3, 2010, supplemented by the oral evidence of the experts.

[8] On May 28, 2010, Ms. Ward’s counsel faxed to the defendant’s counsel an offer to settle the plaintiff’s claim under Rule 37B for $750,000 in new money. The offer was stated to be open until the start of trial or until withdrawn in writing.

[9] On Friday, June 4, 2010, at 11:04 a.m., the defendant’s counsel faxed to plaintiff’s counsel the Second Offer. The pertinent terms of the Second Offer, including the time for acceptance were the same as those of the First Offer, except the amount offered was increased to $595,000. By its terms the offer expired at 4:00 p.m. on the last business day before the first day of trial, being approximately five hours after the offer was delivered.

[10] None of the offers to settle were accepted. The case proceeded to trial on June 7, 2010. The trial lasted some 14 days.

[11] In her submissions at the end of the trial, Ms. Ward asked for damages totalling $1,779,636.96 broken down as follows:

Non-pecuniary Damages	$190,000.00
Past Loss of Income	$165,000.00
Loss of Future Earning Capacity	$650,000.00
Loss of Homemaking Capacity	$420,000.00
Cost of Future Care	$328,580.00
Special Damages	$26,056.96

[12] The defendant’s final submissions suggested an award of between $335,000 - $375,000 calculated as follows:

Non-pecuniary Damages	$100,000.00 - $120,000.00
Past Loss of Income:	$5,000.00
Loss of Future Earning Capacity	$100,000.00 - $120,000.00
Cost of Future Care	$130,000.00
Special Damages	To be determined

[13] The trial judgment required counsel to do certain calculations to determine the cost of future care, loss of future earning capacity and past income loss. The parties’ respective calculations differ by approximately $1,000. The parties agree that the difference is not relevant in relation to the issues that I have to deal with. In the result, the trial judgment with adjustments is either $434,229.33 or $433,103.63. The breakdown is as follows:

	PLAINTIFF	DEFENDANT
Non-pecuniary Damages	$150,000.00	$150,000.00
Past Loss of Income	$41,674.00	$41,674.00
Loss of Future Earning Capacity	$118,650.00	$118,650.00
Cost of Future Care	$117,173.70	$116,048.00
Special Damages	__$6,731.63	__$6,731.63
TOTAL	$434,229.33	$433,103.63

From these amounts must be subtracted the s. 83 deductions of $17,081.32 leaving a net award of either $417,148.01 or $416,022.31. In either case, the plaintiff was awarded a sum substantially less than either of the defendant’s pre-trial offers.

[14] The parties have both provided draft bills of costs. The plaintiff’s bill indicates that subsequent to the First Offer she incurred taxable costs and disbursements of approximately $61,000. The defendant’s bill indicates that subsequent to the First Offer he incurred taxable costs and disbursements of approximately $88,000.

POSITION OF THE PARTIES

[15] The defendant seeks an order that the plaintiff should be deprived of her costs after the First Offer and the defendant should be awarded his costs thereafter. In the alternative, the defendant submits that the plaintiff should be deprived of her costs after the Second Offer and the defendant should be awarded his costs thereafter.

[16] The defendant submits that both his offers should have been accepted. If either offer had been accepted the parties would have both saved the not inconsiderable costs of a 14-day trial. The defendant submits consequences must flow from the plaintiff’s decision to proceed to trial.

[17] The plaintiff submits that in the circumstances the offers made by the defendant were not ones that the plaintiff ought reasonably to have accepted. She points out that prior to the trial she had evaluated her claim at $975,000 calculated as follows:

Non-pecuniary Damages	$175,00.00
Past Loss of Income	$125,000.00
Loss of Future Earning Capacity	$350,000.00
Loss of Housekeeping Capacity	$50,000.00
Cost of Future Care	$275,000.00
TOTAL:	$975,000.00

Taking into account the risk and costs of trial, she made a formal offer to settle of $750,000.

[18] The plaintiff submits that her evaluation of the case before trial was reasonable and she should not be punished for failing to accept the defendant’s offer. She also submits that the Second Offer was only open for acceptance for a matter of hours and the defendant should not be entitled to rely on same. Further, both offers contained unreasonable conditions.

[19] In the alternative, the plaintiff submits that if the court is to give some effect to the defendant’s offers, it should be for some lesser penalty than those sought by the defendant. She notes that if the court makes the award the defendant seeks, the cost to her, taking into account the amounts she must forego, and assuming the accuracy of the draft bills, would be approximately $149,000.

DISCUSSION

A. Pre-Rule 37B: Legislative and Judicial History

[20] In A.E. v. D.W.J., 2009 BCSC 505, 91 B.C.L.R. (4th) 372 at paras. 35-47 (“A.E.”), aff’d 2011 BCCA 279, 19 B.C.L.R. (5th) 350 (“A.E. Appeal”) I traced the legislative and judicial history of pre-trial settlement offers. The defendant’s right to make a payment into court while maintaining a denial of liability can be traced back to the initial Supreme Court Rules adopted in 1890 (o. 22 r. 6). The rule initially only arose in circumstances in which the defendant paid into court a sum greater than the plaintiff recovered. In such cases, the default position was that the plaintiff would be awarded costs up to the time of the offer, while the defendant would be entitled to the costs thereafter.

[21] In 1993, Rule 37 was recast (B.C. Reg. 55/93). Payments into court were replaced by offers to settle. For the first time, plaintiffs were given the right to make offers to settle.

[22] Rule 37 provided different cost consequences depending on who made the offer. In the case of defendant, the rule remained that if the plaintiff obtained judgment for the amount of money specified in the offer or a lesser amount, the plaintiff would be entitled to costs assessed to the date the offer was delivered, and the defendant to costs thereafter. In regard to plaintiffs, if they received an award greater than their offer, they would be entitled to double costs thereafter.

[23] In 1999, Rule 37(24) was further amended in order to allow awards of double costs to defendants when an action was dismissed subsequent to an offer to settle (B.C. Reg. 149/99). The amended Rule read:

(24) If the defendant has made an offer to settle a claim for money and the offer has not expired or been withdrawn or been accepted,

(a) if the plaintiff obtains judgment for the amount of money specified in the offer or a lesser amount, the plaintiff is entitled to costs assessed to the date the offer was delivered and the defendant is entitled to costs assessed from that date, or

(b) if the plaintiff's claim is dismissed, the defendant is entitled to costs assessed to the date the offer was delivered and to double costs assessed from that date.

[24] The 1999 amendment was introduced after a series of trial decisions in which judges had awarded double costs to defendants in cases where the action had been dismissed: Jetha v. Shefield & Sons-Tobacconists Inc., [1997] B.C.J. No. 317 (Q.L.) (S.C.); 32262 B.C. Ltd. v. Balmoral Investments Ltd., [1998] B.C.J. No. 23 (Q.L.) (S.C.); and Cook v. Bhanwath (1999), 73 B.C.L.R. (3d) 305 (S.C.). The rationale for the award of double costs to both plaintiffs and defendants was that in cases in which they succeeded they would already be entitled to ordinary costs.

[25] Over time the cost provisions of Rule 37 were determined to be a complete code with respect to offers to settle, allowing for no judicial discretion: Cridge v. Harper Grey Easton, 2005 BCCA 33, 37 B.C.L.R. (4th) 62.

[26] The operation of Rule 37(24)(a) was the subject of some criticism. It was suggested that it worked an unfair hardship on plaintiffs because an injured plaintiff was deprived not only of costs and disbursements to which he or she would otherwise be entitled, but also had to pay the defendant’s costs and disbursements. The amount of those costs and disbursements would often be unknown in advance of trial making it difficult for a plaintiff to calculate with precision their potential exposure if unsuccessful. Counsel’s attempt to convince the Court of Appeal to modify the rule did not meet with success: Bedwell v. McGill, 2008 BCCA 526, 86 B.C.L.R. (4th) 343.

[27] Some controversy arose as to whether double costs should be paid to a defendant who made a nominal offer to settle an action which was subsequently dismissed. In Clark v. Sidhu, 2005 BCSC 914, 51 B.C.L.R. (4th) 119 (“Clark”), the defendant had made an offer to settle a motor vehicle case in the sum of $1.00. After the action was dismissed, the trial judge held at para. 23 that an offer must be reasonable to attract the sanction of double costs.

[28] In Kurylo v. Rai, 2006 BCCA 176, 53 B.C.L.R. (4th) 214 (“Kurylo”), Southin J.A. held that Clark was wrongly decided and must be overruled. At paras. 7-8, she said:

[7] In my opinion, with great respect, the judgment in Clark v. Sidhu is wrong and must be overruled. There is an underlying reason. When a defendant assesses his position in litigation of any kind he may consider that the plaintiff has no case and if the case goes to trial, will fail. But the defendant may also be willing to make some minor offer which would carry with it the costs in the hope that the action will go away and that he will not, thereafter, incur large legal bills to establish his legal position that the plaintiff has no case.

[8] The reasonableness of an offer under Rule 37 is no business of the Court when it is a monetary offer. ... But the reasonableness of the offer when it is a monetary claim, whether made by the plaintiff or the defendant, is not a matter for judicial consideration.

B. Rule 9-1

[29] Rule 37B came into effect on July 1, 2008. It is now Rule 9-1. The relevant provisions of the Rule are:

(4) The court may consider an offer to settle when exercising the court’s discretion in relation to costs.

(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;

(d) any other factor the court considers appropriate.

[30] Rule 9-1(5) sets out the various cost options open to the court in a proceeding in which an offer to settle has been made. The court is limited to those options: A.E. Appeal at paras. 35-40.

[31] In BCSPCA v. Baker, 2008 BCSC 947, Justice Preston, at para. 15, concluded that Rule 9-1(5) was permissive and empowered the court to make any of the orders mentioned therein. He noted that by necessary implication, the Rule contemplated that the court may deny any of the forms of relief.

[32] Since its inception in 2008, much ink has been spilled explaining the Rule. LexisNexis Quicklaw presently references some 231 decisions in which the Rule has been discussed. From the decisions, some broad principles of general application have emerged concerning how the Rule should be applied.

[33] It is now generally recognized that the Rule provides for the exercise of a broad discretion by trial judges and provides principles to guide in the exercise of that discretion: Roach v. Dutra, 2010 BCCA 264, 5 B.C.L.R. (5th) 95.

[34] In Hartshorne v. Hartshorne, 2011 BCCA 29, 14 B.C.L.R. (5th) 33 at para. 25 (“Hartshorne”), the Court discussed the guiding principles:

[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) 372 at 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.

[35] In A.E. Appeal the court discussed at para. 41 the importance of certainty and consequences in applying the Rule:

[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.

C. Rule 9-1(6) Guiding Principles

i. Should the Offer Have Been Accepted

[36] There is now general agreement that in determining whether the offer to settle should reasonably have been accepted the court does not consider the final result. The reasonableness of a decision not to accept an offer to settle must be assessed not by reference to the award that was ultimately made, but rather the circumstances existing when the offer was open to acceptance: Bailey v. Jang, 2008 BCSC 1372, 90 B.C.L.R. (4th) 125 at para. 24 (“Bailey”); and Hartshorne at para. 27. It is important to note that this factor is considered from the perspective of the person receiving the offer.

[37] In Giles v. Westminster Savings & Credit Union, 2010 BCCA 282, 5 B.C.L.R. (5th) 252 (“Giles”), the Court appears to suggest that the reasonableness of an offer may be decisive in determining the nature of an award of costs that should be made. At para. 88 it says:

[88] I appreciate there are no mandatory factors under Rule 37B(6) and that trial judges have discretion to take into account whatever factors they consider appropriate in a given case. However, the ultimate discretion as to double costs must be exercised in a just, principled, and consistent way. One of the goals of Rule 37B is to promote settlement by imposing consequences on parties who have refused to accept an offer that ought reasonably to have been accepted. While it may not invariably be the case, I consider that it would be generally antithetical to that goal to penalize an unsuccessful plaintiff with double costs for proceeding to trial in the face of an unreasonable offer. Virtually all litigation comes with a degree of risk. When faced with settlement offers, plaintiffs must carefully consider their positions. However, they should not to be cowed into accepting an unreasonable offer out of fear of being penalized with double costs if they are unable to "beat" that offer. Put somewhat differently, plaintiffs should not be penalized for declining an offer that did not provide a genuine incentive to settle in the circumstances. In this case, the Credit Union and Mr. Thomas have not pointed to anything that would support a finding that the plaintiffs' decision to refuse their offer was, at the time of the refusal, an unreasonable one.

[38] I have some difficulty with that analysis. It appears to suggest that plaintiffs who decline an offer that did not provide a genuine incentive to settle should not be subject to costs sanctions regardless of the outcome of the trial. That proposition would appear to be counter to the guiding principles set out in the subsequent decision in Hartshorne.

[39] In that regard it is important to note that the Rule does not make any reference to the impact of “unreasonable offers”. Further, it is with respect difficult to describe an offer as being “unreasonable” when it provides a better result to the plaintiff than that which he has obtained at trial. The fact that an offer does not provide an incentive to settle cannot be determinative. As Savage J. noted in MacKinlay v. MacKinlay Estate, 2008 BCSC 1570, 44 E.T.R. (3d) 48 at para. 34, in comments echoing Southin J.A. in Kurylo:

[34] While a nominal offer might be described as strategic, it was a strategy aimed at persuading the Plaintiffs to discontinue the proceeding, an outcome that is favourable as compared to the outcome the Plaintiffs obtained at trial. Such an offer is one of the few tools in the arsenal of a defendant of relatively modest means which might exert pressure on a plaintiff pursuing an unmeritorious claim.

[40] In certain circumstances a nominal offer may in fact be reasonable and should be accepted to spare all parties the costs of an expensive trial.

ii. Relationship Between Offer and Judgment

[41] In Giles, at para. 89, it is suggested that the fact that an action is ultimately dismissed in its entirety is not a consideration with respect to double costs:

[89] I am also of the view that when an offer made by a defendant for the purpose of achieving a pre-trial settlement is reasonably refused, the mere fact that the action is ultimately dismissed in its entirety is not a consideration with respect to double costs. To take the disposition of the action into account would result in the "hindsight analysis" that Mr. Justice Hinkson, as he then was, cautioned against in Bailey v. Jang, 2008 BCSC 1372, 90 B.C.L.R. (4th) 125 at para. 24. See also: Dodge v. Shaw Cablesystems Ltd., 2009 BCSC 1765 at para. 17. While I acknowledge that the relationship between the offer and the result at trial is specifically mentioned in subrule 37B(6)(b), I consider it to have no relevance in circumstances such as the present.

[42] That comment appears contrary to the Rule which mandates that the court consider the relationship between the terms of settlement and the final judgment. I note in Hartshorne, the Court appears to have resiled from that position at para. 30 where it notes that the relationship of the offer to the court’s order is “an independent factor to be considered in deciding whether a double costs order should be made”.

iii. Relative Financial Circumstances of the Parties

[43] In the first cases decided under Rule 37B, most judges concluded that the fact that an insurer was involved should not be taken into account: Bailey at paras. 32-34; and Arnold v. Cartwright Estate, 2008 BCSC 1575, 86 B.C.L.R. (4th) 99 at para. 23. In Smith v. Tedford, 2010 BCCA 302, 7 B.C.L.R. (5th) 246 at para. 19, the Court of Appeal held otherwise. In that decision the court recognizes that in certain circumstances the existence of an insurer can be taken into account. As I read the case, that is not the inevitable result. In this regard I adopt the analysis of Humphries J. in Mazur v. Lucas, 2011 BCSC 1685 at paras. 48-53 in which she concluded at para. 53 “insurance coverage is not automatically a factor to be considered... the facts of a particular case will govern whether it should be considered, and if so, what weight should be given to it”.

iv. Other Factors the Court Considers Appropriate

[44] This part of the Rule gives the court wide latitude to consider case specific matters in determining how its discretion should be exercised. For example, a case that fails on a difficult causation issue may lead to a different exercise of discretion than one that is lost because of credibility: A.E. at para. 59. In my opinion, this is the appropriate place in the analysis to consider whether an offer was intended to encourage a settlement.

D. Application of Rule 9-1(6) Factors

i. Should the Offer Have Been Accepted

[45] Prior to the trial, the plaintiff’s counsel had carefully assessed the strengths and weaknesses of the case and valued the claim at $975,000. Recognizing the risks of trial, the plaintiff made an offer to settle for $750,000. It is noteworthy that the plaintiff did suffer a significant injury which led to an award of non-pecuniary damages of $150,000. Given counsel’s assessment of the case, it was entirely reasonable to take the case to trial rather than accept either of the offers that were made. In these circumstances, I cannot find that the offer was one that ought reasonably to have been accepted.

ii. Relationship Between Offer and Judgment

[46] Both offers were substantially greater than the amount awarded to the plaintiff at trial. Clearly, the plaintiff would have been better off if she had accepted either of the subject offers. While this disparity is a factor to properly consider, it is not in itself determinative.

iii. The Relative Financial Circumstances of the Parties

[47] The evidence indicates that the plaintiff is a full-time homemaker. She lives with her husband and two sons. Her only source of income is the Canadian Pension Plan disability benefit of $969.04 a month. Her husband is an electrician and one of several shareholders in a company that carries on an electrical business. In 2009, he earned approximately $121,000, which included a bonus of $50,000. His 2010 estimated income, in which he did not receive a bonus, is approximately $70,000. The family owns their own home which has an assessed value as of July 2010 of $352,000. The mortgage on the home is approximately $120,000 and the family also has a line of credit which was used to finance a major renovation.

[48] The plaintiff will not be impoverished if she has to pay an award of costs. However, such an award will certainly significantly reduce the value of the judgment.

[49] I have no information concerning the personal defendant. I assume that the cost award will be borne by his insurer.

[50] There is no suggestion in this case that the insurer has used its financial strength to take any unfair advantage. In my view, the relative financial position of the parties in the circumstances of this case is of no import.

iv. Other Factors the Court Considers Appropriate

[51] The defendant made a significant offer of settlement. While it may have been reasonable, from the perspective of the plaintiff, to take the case to trial, the defendant’s offer was more than generous and was well in excess of what was awarded at trial.

[52] The main reason the plaintiff failed to exceed the offer was because the trial judge did not accept her evidence concerning her intentions to return to work. He determined that she was never likely to have earned more than $6,000 a year and awarded only $160,324 for past income loss and loss of future earning capacity. Prior to trial, plaintiff’s counsel had calculated awards under those heads of $475,000. A relatively modest increase in the trial judge’s award under these heads of damage would have enabled the plaintiff to best the defendant’s offers.

E. Conclusion

[53] For the reasons I have stated, it cannot be said that the plaintiff should have accepted either offer. That is, however, the beginning, not the end of the analysis. Unlike Rule 37 which mandated the outcome regardless of the circumstances, Rule 9-1 gives the court a broad discretion to determine the consequence of a successful offer to settle. While the Rule is intended to reward the party who makes a reasonable settlement offer and penalizing the party who fails to accept it, the several options set out in Rule 9-1(5) allows the court to determine with greater precision the penalty or reward appropriate in the circumstances.

[54] In this case, regardless of the merits of the plaintiff’s case, the defendant’s offers to settle cannot be ignored. To do so would undermine the purpose of the Rule. Having decided to proceed in the face of two not insignificant and ultimately successful offers to settle, the plaintiff cannot avoid some consequences. That said, in the circumstances of this case, to deprive the plaintiff of her costs and have her in addition pay the costs of the defendant would be too great a penalty. It would not be fair or just to require the plaintiff to pay the defendant’s costs after the date of the First Offer. Similarly, however, I find that the defendant should not pay the costs of the plaintiff after the delivery of the First Offer, which costs were only incurred because the plaintiff decided to proceed.

[55] Accordingly, I find that the plaintiff is entitled to her costs up to May 3, 2010. The parties will bear their own costs thereafter.

“R.B.T. Goepel J.”

________________________________________

The Honourable Mr. Justice Richard B.T. Goepel