Soltan v. Glasgow

2020 BCSC 960 Soltan v. Glasgow

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Soltan v. Glasgow, 2020 BCSC 960 Date: 20200702 Docket: M168216 Registry: New Westminster Between: Silvia Soltan Plaintiff And Emma Glasgow, David Kushnier and Kerri Shana O'Keefe Defendants Before: The Honourable Mr. Justice A. Saunders Reasons for Judgment on Costs Counsel for the Plaintiff: J.C. Moulton Counsel for the Defendants: C. Manning Written Submissions of the Plaintiff Received: May 27, 2020 and June 18, 2020 Written Submissions of the Plaintiff Received: June 11, 2020 Place and Date of Judgment: New Westminster, B.C. July 2, 2020 [1] By way of reasons for judgment issued on September 11, 2019, indexed at 2019 BCSC 1527, I assessed the plaintiff's damages under the following heads: Non-pecuniary Damages: $70,000 Past Income Earning Capacity: $85,000 (Gross) Future Income Earning Capacity: $40,000 Costs of Future Care: $14,000 Special Damages: $30,595.55 (Subject to Pt. 7 Deductions) [2] The parties have agreed on a net damages award of $204,317.55. [3] The plaintiff now seeks double costs of the five-day trial pursuant to Rule 9-1(5)(b), by reason of having made a formal offer to settle in the amount of $150,000 on Thursday, January 3, 2019, only one clear business day prior to the commencement of trial. [4] The Court's power to award double costs of all or some of the steps taken in a proceeding after the date of

delivery of an offer to settle is set out in Rule 9-1(5)(b). The considerations that guide the Court's exercise of its discretion in making such an award are set out in Rule 9-1(6). They are: (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. [5] The purposes and principles underlying the Rule's costs provisions are summarized in the unanimous reasons of the Court of Appeal in Hartshorne v. Hartshorne, 2011 BCCA 29, at para. 25: [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 [v. Westminster Savings and Credit Union, 2010 BCCA 282] 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. [6] The defendants submit that double costs are not appropriate in this case for

the following reasons: (a) It is submitted that the offer ought not reasonably to have been accepted, as the defence did not have adequate time to reasonably consider and assess the offer prior to commencement of trial. The defence, in this regard, cites the following factors: 1. The timing of the offer, with the instructing ICBC adjuster for the defendants having been engaged in a mediation on Friday, January 4, 2019, which was the one full business day falling between the delivery of the offer and the trial date; and 2. Non-production of business records of the plaintiff which the defendants assert were later produced during the trial and which they also assert were necessary "to properly consider issues of wage loss"; (b) The plaintiff provided no rationale for the settlement offer. Specifically, it was not broken down into heads of damages so as to be easily evaluated. Without this breakdown, the defendants submit that the offer cannot be said to have been "clear and unambiguous", citing Elsen v. Elsen, 2011 BCSC 1011, at para. 44; (c) The awards for past and future income loss made up over half of the total damages awarded at trial. Those damages were centrally in dispute and, it is submitted, did not form part of a frivolous or doubtful defence; and (d) It is submitted that considering the timing of the settlement offer, it cannot be said to have been in furtherance of

the interests of early settlement, decreased litigation duration, or reduced litigation cost, as the litigation was almost entirely complete on the date the offer was delivered. [7] The defendants do not reference any particulars of the business records they say were later produced during the trial. Moreover, they provide no evidence as to how the alleged late production of those documents specifically impacted the defendants' assessment of the plaintiff's case. With respect, defence counsel's assertion that there was such late production of documents appears mistaken. I have no recollection and no record of any production of further business records during the course of the trial. Counsel for the plaintiff's recollection accords with mine. My bench notes reflect that the plaintiff was examined and cross-examined only on business records that formed part of the joint book of documents entered into evidence at the commencement of trial, which were subject to a document agreement. What defendants argued in their closing submissions at trial, was that "no objective evidence such as tax returns or business records have been produced in order to quantify any potential loss". In respect of that argument, I said in my reasons for judgment: [56] I note that the corporate financial statements up to the year ending January 31, 2017 are in evidence, as are Ms. Soltan's personal tax

returns up to and including the 2018 calendar year, as well as a number of independent contractor agreements under which Ms. Soltan's services were provided to various employers. The defence did not take the position that Ms. Soltan's loss is to be denied or reduced by reason of her income having been earned through a corporation. [8] The defendants, on this application, provide no reasons as to why the plaintiff's settlement offer could not reasonably have been evaluated as within the range of probable outcomes given the documents the plaintiff had produced. [9] At trial, the defendants also took issue with the plaintiff's decision to take time away from the workforce without medical advice to that effect. Defence counsel conceded in closing submissions that such medical evidence was not a necessary precondition to a finding that the plaintiff's decision was reasonable. My findings regarding that decision are set out at para. 55 of my reasons: [55] It clearly was not a decision made lightly, given the financial implications. She had reason to believe that her need to take breaks had been viewed negatively by her employers. It is no answer for the defence to say, as Dr. Boyle [the defence medical expert] does, that Ms. Soltan was physically capable of working. She was not obliged to keep working in pain, when relieving her body of the physical strain and tension of her

workplace was a viable path to recovery. In hindsight, her decision was justified by the result; after some four-and-a-half years of chronic soft-tissue pain she achieved complete, or nearly complete resolution of her symptoms through a fourteen month absence. Dr. Hershler's [the plaintiff's medical expert] glowing assessment of the degree to which Ms. Soltan was able to achieve functional recovery provides further evidence of the reasonableness of her decision. The defendants provide no evidence and make no submissions as to why they could not reasonably have undertaken that analysis prior to trial. [10] With respect to the loss of future income earning capacity, the defendants' closing submissions at trial did not address the evidence of the plaintiff's expert Dr. Hershler. To the extent that the defendants' pre-trial assessment of that head of damages may have been based on the evidence of their own expert Dr. Boyle, I must note that numerous deficiencies in Dr. Boyle's opinion were quickly and easily established through skilful cross-examination by the plaintiff's counsel. The weaknesses in Dr. Boyle's report are summarized at paras. 30-34 of my trial reasons. A balanced analysis of the evidence would have apprehended those weaknesses in Dr. Boyle's opinion before trial and would have led to his opinion being discounted before rejecting the plaintiff's offer. [11] The

assessment issues in this case were straightforward. There was no ambiguity in the settlement offer. The defendants' contention that the offer could not reasonably have been evaluated without a breakdown into heads of damages is untenable. I find that a reasonable assessment prior to the commencement of trial ought to have indicated that the plaintiff's offer was well within the range of likely outcomes. [12] Moreover, the defendants ought to have undertaken such an assessment well in advance of trial, and ought to have been able to respond quickly to the plaintiff's offer. In this regard I adopt the reasoning of Mr. Justice Curtis in Bevacqua v. Yaworski, 2013 BCSC 29, at para. 8. [13] Accepting the plaintiff's offer would have saved both parties the expense of trial, would have freed up judicial resources, and would have avoided the inconvenience and possibly the cost of having professional witnesses attend. [14] I find an award of double costs for the cost of trial is warranted. The plaintiff will be entitled to double costs in respect of tariff item 35. "A. Saunders J."