After $0 from a jury, plaintiff ordered to pay ICBC’s costs

If the jury rejects my claims outright, will I have to pay ICBC’s costs of defending the other driver?  What if they shared video surveillance that should have alerted me to issues with my credibility?

In a decision made September 13, 2018 (Arar v. Ismail, 2018 BCSC 1573) Mr. Justice Myers considered whether the defending party (ICBC defending a negligent driver) should be awarded costs of a jury trial. The claim arose from a rear-end collision,  in which the plaintiff claimed she suffered several injuries including PTSD, a brain injury, physical injuries, headaches and psychological symptoms. Liability for the collision was admitted.

Two months before trial, the defence offered $50K to settle the plaintiff’s claims.  Just over two weeks before trial, the defence served video surveillance of the plaintiff (which they used at trial). The following week, the defence made a further offer of $65K. After a two week trial, the jury declined to award the plaintiff any compensation – rejecting her claim for injuries and losses.

Because they had offered to settle her claims for far more than the trial outcome – the defendants sought an order that she pay their costs of the action, and double costs after the date of their offer. Mr. Justice Myers summarized the relevant law – particularly with regard to offers made in relation to video surveillance. The timing of receiving the surveillance is relevant to whether the offer should have been accepted – because at that time the credibility issues should be recognized. In concluding that the defence was entitled to regular costs up until the end of the first five days of trial and double costs thereafter, Mr. Justice Myers found as follows:

The relative financial circumstances of the parties

[35]     I accept that, as the plaintiff points out, she is a person of modest means.  Nevertheless, the courts have generally held that a disparity in financial circumstances between a party and the other party’s insurer is not something to be taken into account: Luckett v. Chahal at paras. 30–32; Wepryk v. Jurashka, 2013 BCSC 804 at para. 5; Dennis v. Fothergill, 2014 BCSC 452 at para. 34.  There was no misconduct or dragging out of the litigation here.

Other factors

[36]     The plaintiff alleges that the defendants improperly conducted surveillance of her leaving a settlement meeting.  This was raised by the plaintiff during the trial and I held that nothing had been shown to merit the video not being shown to the jury.  I also do not see anything here that would be a consideration for this costs application.

[37]     I said I would return to the timing of the second offer  There was nothing to prevent the defendants from providing the surveillance far sooner, given its importance; as noted above, it was completed in January 2018.  The fact that it was disclosed in compliance with the rules does not mean that its timing cannot be a consideration with respect to the discretion to award double costs.  As well the $65,000 offer, which was not delivered until five days before trial, could have been delivered sooner.  This would have given the plaintiff more time to consider her position, without prejudicing the defendants.  Therefore, in my view, the defendants should receive ordinary costs up to and including the first five days of trial and double costs after that.