Defence denied costs despite beating formal at jury trial

In reasons for judgment released today, the court in Bains v. Antle, 2017 BCSC 590, declined to award the defence costs despite beating its formal offer to settle.  In Bains, the plaintiff was awarded $37,800 by the jury at trial.  The defence had made a formal offer of $185,000 before trial.  In declining to award the defence its costs Madam Justice Power said:

[1]             After a ten-day jury trial in October 2016, the plaintiff was awarded by the jury, $37,800.00, an amount which was substantially less than what she was seeking and expected to receive at trial for chronic myofascial shoulder pain.


[3]             The defendants seek an order that the plaintiff have her costs up until the defendants’ first formal offer to settle and that the defendants be awarded their costs of the action thereafter with a set-off as appropriate.  The defendants argue that their formal offer of September 20, 2016 -- $185,000 of new money plus costs -- ought reasonably to have been accepted on the date it was delivered.

[9]             The defendants served a single report which was a records review report of orthopedic surgeon Dr. John Hummel.  Dr. Hummell was not called to provide expert testimony at trial.

[15]         The plaintiff argues that neither of the defendants’ formal offers to settle was reasonable to accept in all of the circumstances.  The plaintiff was confident that she had a meritorious claim for substantial damages including loss of future earning capacity.  The plaintiff argues that the defendants’ responsive reports supported her claim.  The plaintiff argues that the defendants’ rebuttal expert, Ms. Claudia Walker, alone supported a fairly large claim for costs of future care.

[16]         The plaintiff argues that she has incurred tens of thousands of dollars for disbursements and that as a result of the trial, the family is financially devastated, requiring withdrawal of money from her children’s accounts.

[17]         The defence argues that the plaintiff went to court attempting to obtain over a million dollar award for a soft tissue injury.  The plaintiff took a gamble and lost, and it is this kind of action that is driving insurance rates up.  The defendants offered over five times what the jury awarded and it was a reasonable offer that ought to have been accepted on the date it was delivered.

[25]         Although some of the plaintiff’s initial negotiating positions were clearly inflated, and were tactical in nature and in that regard overly optimistic, I agree with the plaintiff that her decision not to accept the offer tendered by the defendants before trial was a reasonable one.  The evidence available to the plaintiff at the time that the settlement offers were rejected included expert reports in respect of past wage loss, loss of future earning capacity, and cost of future care.


[36]         It is my view that all of the financial evidence at trial supports the fact that the plaintiff was a person of modest means.  Having already concluded that the settlement offer was not one which ought to have reasonably been accepted, it is evident that an order requiring the plaintiff to either pay the well-funded defendants’ costs, or in the alternative denying the plaintiff her costs, from September 20, 2016 onwards, would result in a pyrrhic victory and could have the effect of discouraging plaintiffs from pursuing valid claims.

The full decision can be found here: