Grewal v. Fastlane Transport Limited

2025 BCSC 67 Grewal v. Fastlane Transport Limited

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Grewal v. Fastlane Transport Limited, 2025 BCSC 67 Date: 20250116 Docket: M204937 Registry: Vancouver Between: Pavneet Kaur Grewal Plaintiff And Fastlane Transport Limited and Kanwaljit Singh Kathuria Defendants Before: The Honourable Justice Ahmad Reasons for Judgment as to Costs Counsel for the Plaintiff: L. Anjos Counsel for the Defendants: J. M. Brown S.F. Hosenbocus Written Submissions of the Plaintiff Received: December 2 and 6, 2024 Written Submissions of the Defendants Received: November 27 and December 4, 2024 Place and Date of Judgment: Vancouver, B.C. January 16, 2025 I. Introduction [1] The plaintiff, Pavneet Kaur Grewal, was involved in a motor vehicle accident on March 27, 2019, for which the defendants admitted liability. Broadly speaking, the issues at trial were the nature and extent of the injuries that were causally linked to the accident and the damages to which the plaintiff was entitled to as a result of those injuries. [2] The trial was held over 11 days commencing on January 15, 2024. In reasons for judgment dated October 31, 2024, indexed at 2024 BCSC 2002, the plaintiff was awarded damages totalling $211,938. [3] The parties were granted leave to make written submissions on costs. These are my reasons for the parties' costs submissions. II. Background [4] The trial of this action was originally

scheduled to be heard in February 2023, but was adjourned on the application of the plaintiff on February 7, 2023 when new documents were produced shortly prior to the trial date. At the time, the parties had exchanged offers to settle, neither of which were accepted. [5] Subsequent formal offers to settle were exchanged prior to the commencement of the re-scheduled trial on January 15, 2024 as follows: a) On January 5, 2024, the defendants issued a formal offer to settle by payment to the plaintiff of $278,789.64 (the "January 5 Offer"); and b) On January 9, 2024, the plaintiff issued a formal offer to settle for $325,000. On January 12, 2024, she offered to accept $286,796.88 to settle the action. [6] All of the offers were open for acceptance until 4:00 p.m. on January 12, 2024, the last business day prior to the commencement of the trial. None were accepted. III. Legal Framework [7] The usual costs rule is that the successful party is awarded its costs. Except in specifically enumerated situations, those costs are to be assessed as party and party costs, the quantum of which is to be determined by the Registrar: Rule 14‑1(1)‑(5) of the Supreme Court Civil Rules, B.C. Reg. 168/2009. [8] Rule 9-1 allows the court to depart from the general costs rule where an offer to settle has been made. Rule 9‑1(5) provides: 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. [9] Where the court considers making an order under Rule 9‑1(5), Rule 9‑1(6) provides that 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. [10] As the Court observed in Stevens v. Creusot, 2020 BCSC 1263 [Stevens]: [40] The dominant and overarching object of Rule 9-1 is to promote reasonable settlements and attach some consequence to the failure of a party to accept a reasonable settlement: Gonzalez v. Voskakis, 2013 BCSC 675 at para. 13 and Brewster v. Li, 2014 BCSC 463 at paras. 15-16. As the Court stated in Clubine v. Paniagua, 2018 BCSC 1076 at para. 13, a plaintiff who rejects a reasonable offer should usually face some sanction in costs. IV. Issue and Position of the Parties [11] Having established that she sustained injuries as a result of the accident and that she was entitled to damages as a result of those injuries, I accept that the plaintiff was substantially successful in the action. Accordingly, she is entitled to costs. [12] The issue to be determined on this application is the effect of the offers on the award of costs. [13] Referring to Rule 9-1(5)(d), the defendants argue that having "beaten" the trial award in the January 5 Offer, they are entitled to costs after that date. [14] The plaintiff does not suggest that the January 5 Offer did not beat the trial award. However, she argues that neither the timing nor the form of the offer made it conducive for acceptance. Presumably in recognition of the fact

that the defendants did beat the offer, she argues that each of the parties should bear their own costs after January 5, 2024. IV. Discussion and Analysis [15] I will assess this matter with reference to the Rule 9-1(6) factors that guide the analysis. Was the offer one that ought to reasonably have been accepted at the time of the offer? [16] This factor is to be assessed without reference to the award which was made at trial. Rather, the question is: would it have been reasonable for the offer to have been accepted at the time the offer was open for acceptance? The answer to that question is informed by factors including whether the offer had some relationship to the claim (as opposed to simply being a "nuisance offer"), whether it could be easily evaluated, and whether some rationale for the offer was provided: Hartshorne v. Hartshorne, 2011 BCCA 29 at para. 27 [17] I start this analysis with the observation that the defendants' January 5 Offer was made 10 days before the commencement of the trial, which was the second time that the matter had been set for trial and ready to commence. By then, full document production had been made, oral examination for discovery had been concluded, expert reports had been exchanged, and witness lists exchanged. As the plaintiff states in her written submissions, "[b]y that time, considerable effort had been expended in witness and trial

preparation ". [18] In short, the plaintiff was aware of the evidence that would be adduced, and the arguments that would be made, at trial and had the opportunity to consider her position in light of that information. [19] For that reason, I do not accept, as the plaintiff argues, that the seven days that she had to respond to the January 5 Offer or the defendants' failure to break down the offer into specific heads of damages deprived her of the opportunity to adequately consider it. Again, given the information she had and the late stage of the litigation, it is difficult to accept that she would not have already conducted an assessment of the possible range of damages under each head of damages. [20] Indeed, the fact that the plaintiff made two offers to the defendants, one on January 9 and one on January 12, 2024, indicates that she had assessed her potential damages. The fact that her January 12 offer was only $8,000 more than the defendants' January 5 Offer provides some evidence that she considered the January 5 Offer to be at least within striking distance of one that ought to reasonably have been accepted. I agree that is the case. Relationship between the offer and the final judgment [21] As noted, at trial, the plaintiff was awarded damages of approximately $212,000, or approximately $67,000 less than the $279,000 set out in the January 5 Offer. [22] This factor

militates in favour of the defendants' position. The relative financial circumstances of the parties [23] In the five-year period between the accident and the date of trial, the plaintiff's income was approximately $18,500. She remained unemployed as of the trial date. While she lived at home, and presumably incurred little in the way of daily expenses, I accept that the plaintiff is of limited means. [24] There is no evidence regarding the financial circumstances of the defendants. However, they were represented by an insurer and there was no evidence that their coverage limits were an issue. Not only can their insurance coverage be taken into account, but it is of "no small importance" on this assessment: Smith v. Tedford, 2010 BCCA 302 at paras. 16-19. [25] In my view, there can be no doubt that, with the benefit of an insurer, the defendants' financial ability to defend was much greater than the plaintiff's ability to prosecute her claim. [26] This factor favours the plaintiff's position. Any other factor the court considers appropriate [27] As an "other factor" in this case, I have considered the plaintiff's January 12, 2024 offer to settle the action for $286,796.64 (the "January 12 Offer"). Although that offer was more than the amount awarded at trial, in my view, it is significant in two ways. [28] First, the plaintiff's January 12 Offer was not the only offer the

plaintiff made in the week leading up to the trial. Rather, after initially offering to settle for $325,000 on January 9, she reduced her offer by almost $40,000, without any intervening formal offer from the defendants [1]. In my view, the fact that she reduced her offer after three days is indicative of the likelihood that she did reasonably consider the defendants' January 5 Offer. The fact that she effectively "bargained against herself" to make the January 12 Offer indicates a genuine attempt to achieve a settlement without having to incur the costs of a 10-day trial. [29] Second, the plaintiff's January 12 Offer reduced the gap between the parties' positions to $8,000, an amount that was less than 3% of the defendants' January 5 Offer and would certainly be exceeded by the cost of trial. In effect, at that point, both parties had to consider whether the difference in their positions was worth the risk of proceeding to trial. Conclusion and Summary [30] As set out above, I am satisfied that the January 5 Offer was one that ought to reasonably been accepted at the time it was made. The award at trial leaves little doubt that this is the case. If those were the only factors to consider, it would be difficult to deny the defendants the costs award they seek. However, those factors alone are not determinative of the issue. [31] While the plaintiff did not accept what I have

concluded was a reasonable offer, as indicated above, I am of the view that she did make the effort to reasonably consider that offer and, having done so, attempt to resolve the action by making the January 12 Offer. [32] I do not suggest that it was incumbent on the defendants to close the $8,000 gap to ensure that the matter was resolved prior to trial. However, as set out above, I note that they were in a better financial position than the plaintiff to do so. It seems to me that, with some further reasonableness by both parties, each could have avoided incurring the costs they did by proceeding to trial. [33] Moreover, given the amount of the award, I am satisfied that awarding the defendants' costs of the trial would erode the award of damages to a degree such that the plaintiff would be undercompensated for the injuries and losses resulting from the defendants' negligence. Similar circumstances were a factor in the Court's decision to award a plaintiff costs of the entire proceeding, including after the date on which an offer to settle had been made: Zhao v. Yu, 2015 BCSC 2342 at paras. 10 and 15. [34] Again, this is not a case in which the plaintiff had unreasonably failed to make any effort to consider the defendants' January 5 Offer or to resolve the action on equally reasonable terms. [35] Having weighed the relevant factors, I am satisfied that a just result dictates

that each of the parties bear their own costs after the date of the January 5 Offer. V. Conclusion [36] Based on all of the above: a) the plaintiff is entitled to costs against the defendants for all matters in the proceeding (except as may have been previously determined) as party and party costs in accordance with Appendix B of the Rules up until January 5, 2024; and b) each of the parties will bear their own costs after January 5, 2024. "Ahmad J." [1] I am advised that the defendants made two informal offers in this period, neither of which I have considered for the purposes of this assessment under Rule 9-1.