Court criticizes ICBC for "ticking time bomb" settlement offer

In reasons for judgment posted this week, the court in Deol v. Sheikh, 2017 BCSC 1343, declined to award the defence its costs despite the fact they had substantially beaten their formal offer to settle.  In Deol, the defence made a formal offer to settle on the Thursday before trial in the amount of $450,000 (with the offer expiring at the end of the next day).  The plaintiff rejected the offer and was awarded $334,000 at trial.  In declining to award the defence its costs, Madam Justice Griffin described the defence offer as a "ticking time bomb" and held that the offer was not one the plaintiff should reasonably have accepted:

[12]         The plaintiff is unlike the insurer who was on the defence side of the case. The insurer is a serial litigant that has institutional knowledge about the risks of trial and the legal and evidentiary issues that are common in these kinds of cases.

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[14]         In my view, it is unreasonable to expect a plaintiff suffering from this kind of medical condition to be able to make a reasoned, confident decision about an offer to settle in a high-stress situation on the eve of trial in the limited time of one day. The fact she earlier made a counter-offer within a day proves only that with her lawyer’s help she had the ability to react to earlier offers, but does not prove that she had time to react reasonably to the Offer made on June 2. In short, the earlier exchange of offers does not prove that she had reasonable time to consider the Offer made on June 2.

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[16]         This case was dealing with a plaintiff who had a serious claim with long-term repercussions for her. When receiving a settlement offer, she would need the necessary time appropriate to someone with her injuries in order to reflect on what might be in her best interests. To penalize her by depriving her of costs or awarding costs to the defendants for not making a split-second decision about something so important to her future would, in my view, be unfair.

[17]         While the possibility of an unfavourable costs award should encourage settlements, the offer to settle rule is not intended to be a tool to impose high stakes last-minute pressure on an injured litigant.

[18]         The accident occurred in 2012, four years before trial. There was plenty of time for the defendants to make a reasonable offer in a way that would allow the plaintiff enough time to reflect on it and seriously consider it objectively.

[19]         I conclude that the plaintiff’s decision not to accept a ticking time bomb of a settlement offer delivered on the Thursday before the start of trial and open for one day only was not unreasonable.

The text of the full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/17/13/2017BCSC1343.htm