Tommy v. 7-Eleven Canada, Inc.

2025 BCSC 924 Tommy v. 7-Eleven Canada, Inc.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Tommy v. 7-Eleven Canada, Inc., 2025 BCSC 924 Date: 20250425 Docket: S203407 Registry: Vancouver Between: Crystal Leanne Tommy Plaintiff And 7-Eleven Canada, Inc. and ABC Property Management Company Defendants Before: The Honourable Madam Justice Burke Oral Reasons for Judgment - Costs Counsel for the Plaintiff: T. Dennis Counsel for the Defendants: C. Chisholm Place and Date of Hearing: Vancouver, B.C. April 25, 2025 Place and Date of Judgment: Vancouver, B.C. April 25, 2025 Introduction [1] These are my oral reasons for judgement. I reserve the right to edit and/or add to these reasons, but the substance will not change. [2] The plaintiff seeks an order pursuant to Rule 9-1(5)(b) of the Supreme Court Civil Rules [Rules] allowing her double costs against the defendants for the steps taken after the delivery of her three formal offers to settle this action; each of which was for an amount that was lower than the ultimate award at trial. The plaintiff says the defendants did not accept these reasonable offers to settle. The plaintiff maintains the defendants should therefore face the cost consequences, in the form of double costs being awarded in this matter. Background [3] By way of brief background, the plaintiff suffered an ankle fracture when she tripped on a pot hole in a 7-Eleven Canada Inc. ("7-11") parking lot near

Smithers, BC on May 2, 2018. The details and impact of this injury, which I will not repeat, have been set out in the Court's judgement in Tommy v. 7-Eleven Canada, Inc., 2024 BCSC 1558, released on September 4, 2024. Discussion Rules 9-1(5)(b) and 9-1(6) [4] This application is brought pursuant to Rule 9-1(5)(b) of the Rules. A useful summary of the applicable principles is set out in Halvorson v. West, 2022 BCSC 457: [20] Rule 9‑1(5)(b) provides that in a proceeding in which a plaintiff has served a formal offer to settle, the court may award double costs of all or some of the steps taken in the proceeding after the service of the offer. [21] Rule 9-1(6) lists the factors the court may consider in making that determination. These 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; and d) any other factor the court considers appropriate. [22] Hartshorne is the leading case on the subject. There, the Court of Appeal said: [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" [Citations omitted.] [23] The court went on to endorse comments made in Giles v. Westminster Savings and Credit Union, 2010 BCCA 282, at para. 73 [Giles], concerning the purposes for which costs rules exist: a) to deter frivolous actions or defences; b) to encourage conduct that reduces the duration and expense of litigation and to discourage conduct that has the opposite effect; c) to encourage litigants to settle whenever possible, thus freeing up judicial resources for other cases; d) to have a winnowing function in the litigation process by requiring 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 e) to discourage the continuance of doubtful cases or defences. [5] I also note the comments made in Giles v. Westminster Savings and Credit Union, 2010 BCCA 282 [Giles]: [88] I appreciate there are no mandatory factors under Rule 37B(6) and that trial judges have discretion to take into account whatever factors they consider appropriate in a given case. However, the ultimate discretion as to double costs must be exercised in a just,

principled, and consistent way. One of the goals of Rule 37B is to promote settlement by imposing consequences on parties who have refused to accept an offer that ought reasonably to have been accepted. While it may not invariably be the case, I consider that it would be generally antithetical to that goal to penalize an unsuccessful plaintiff with double costs for proceeding to trial in the face of an unreasonable offer. Virtually all litigation comes with a degree of risk. When faced with settlement offers, plaintiffs must carefully consider their positions. However, they should not to be cowed into accepting an unreasonable offer out of fear of being penalized with double costs if they are unable to "beat" that offer. Put somewhat differently, plaintiffs should not be penalized for declining an offer that did not provide a genuine incentive to settle in the circumstances. In this case, the Credit Union and Mr. Thomas have not pointed to anything that would support a finding that the plaintiffs' decision to refuse their offer was, at the time of the refusal, an unreasonable one. Analysis [6] I will deal with each of the factors outlined above; not necessarily in order, and any other considerations that are relevant. Offers to settle [7] The plaintiff presented three offers to settle in this case. [8] On July 7, 2023, the plaintiff presented an offer to settle in the amount of

$125,000 plus costs, disbursements and the Ministry of Health Services' claim pursuant to the Health Care Costs Recovery Act, S.B.C. 2008, c. 27 [HCCRA]. This offer was open until July 28, 2023 at 2:00 p.m. The defendants did not accept this offer. [9] On May 30, 2024, the plaintiff forwarded an offer to defence counsel in the amount of $345,000 inclusive of the HCCRA claim plus costs. This offer was left open until June 7, 2024 at 4:00 p.m. [10] On June 27, 2024, the plaintiff forwarded an offer to defence counsel in the amount of $250,000 "new money" plus costs, excluding the HCCRA claim. This offer was left open until July 4, 2024 at 2:00 p.m. [11] The plaintiff's first offer of July 7, 2023 had been presented in response to a July 7, 2023 offer from the defendants for some $25,000 to settle the claim. [12] The plaintiff's second offer of May 30, 2024 was in response to a May 29, 2024 offer from the defendants for $125,000 to settle the claim. [13] In this matter, the offers to be considered under Rule 9-1(5)(b) and 9-1(6) are these offers presented by the plaintiff to the defendants to settle this case. Relationship between the terms of settlement offered and the final judgment of the court [14] With respect to the Rules and jurisprudence set out above, I will first deal with the relationship between the terms of settlement offered and the final judgment of the Court. That

factor is relatively straightforward. There is no real question that this factor favors the plaintiff. The defendants were found liable with no contributory negligence of the plaintiff, and the damage award was substantially higher than the plaintiff's settlement proposals. The Court awarded the plaintiff over $900,000 in damages which is significantly more than any of the offers made by the plaintiff to the defendants to settle this matter. [15] While the defendants acknowledge this factor, they note that as per Brewster v. Li, 2014 BCSC 463, at para. 35 [Brewster], this factor should not be given undue weight. In addition, the defendants note that the offers were subject to conditions not enumerated in the offer, set out as Appendix A, which was not included in the offer letter. [16] With respect to this latter point, as the plaintiff has pointed out and I agree, the conditions were indeed enumerated in the letter, set out under a notation referencing Appendix A. With respect to the comments in Brewster, there is no doubt this factor is one of a number. While it does favour the plaintiff, it is not necessary to give it undue weight this case and I do not do so. Relative financial circumstances of the parties [17] As noted by the defendants, I agree that the question of the relative financial circumstances of the parties is not simply whether there is a disparity in financial

circumstances of the parties, but whether that unfairly created an advantage in the defendants' ability to defend a case as compared to the plaintiff's ability to prosecute a case. [18] There is no doubt the financial disparity between the plaintiff and the defendants is stark. As indicated in the judgement, the plaintiff suffered financial vulnerability as a result of this injury, and the pursuit of this litigation was a significant hardship for her, including as it did dealing with expert reports as part of the preparation for the litigation while suffering periods where she was unable to work. While, as the defendants noted, the settlement offer contained a note from plaintiff's counsel that the plaintiff had a contingency counsel and was making a settlement offer in an effort to resolve a proceeding that is "clearly uneconomical for the defendants" (i.e., 7-11), as explained by plaintiff's counsel, this was to indicate to the defendants that the plaintiff would continue with the litigation proceedings and not be dissuaded by delay and difficulty. [19] I agree the reality in this case was a plaintiff with limited means suffering financially while awaiting the litigation process. The jurisprudence, however, does focus on whether the defendants utilized their financial strength in an unfair or an untoward manner: Halvorson at para.

30. I also echo the comments of the Court in Halvorson concerning the utility of this factor in cases where the defendants are insured or in cases involving large corporations, as there will likely be a vast disparity in financial circumstances in that context. [20] This factor as it applies to this case must therefore, on the basis of the jurisprudence to date, be considered relatively neutral, as I do not find the defendants utilized their financial strength in an unfair manner in this litigation. Whether the offer ought reasonably to have been accepted [21] In considering whether an offer ought reasonably to have been accepted, the BC Court of Appeal in Hartshorne v Hartshorne, 2011 BCCA 29 [Hartshorne] set out some guidance: [27] The first factor - whether the offer to settle was one that ought reasonably to have been accepted - is not determined by reference to the award that was ultimately made. Rather, in considering that factor, the court must determine whether, at the time that the offer was open for acceptance, it would have been reasonable for it to have been accepted Instead, the reasonableness is to be assessed by considering such factors as the timing of the offer, whether it 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. We do not

intend this to be a comprehensive list, nor do we suggest that each of these factors will necessarily be relevant in a given case. [22] In brief, as noted, the court must determine whether, at the time the offer was open for acceptance, it would have been reasonable for it to have been accepted. The reasonableness is assessed by considering the timing of the offer, whether it had some relationship to the claim, and whether it could be easily evaluated and had some rationale. [23] First, with respect to the timing of the offers, I note the first offer of July 7, 2023, was a year before the trial, well in advance of the trial, and there was sufficient time for the defendants to evaluate it as it was open for three weeks. That offer was detailed and set out the critical issues of the case and information within the control of the plaintiff. [24] I am also satisfied that there was a reasonable rationale for the offer provided to the defendants, and that the offer included particulars of the issues to be raised and likely evidence to be presented. At this point in time, the response to civil claim had been filed on June 7, 2021. Signed authorizations allowing the defendants to collect the plaintiff's medical records were provided to the defence on March 28, 2023. Those records would establish the ankle injuries associated with the allegations in the notice of claim. [25] In

considering whether the defendants could have easily evaluated the claim, I note the material overall establishes the above as of July 7, 2023, and that the plaintiff conducted an examination for discovery of the defendants' representative on December 14, 2023, with the plaintiff's examination for discovery conducted on December 15, 2023. The report of the plaintiff's expert, Dr. Sadr, had been served on the defendants on April 10, 2024. The defendants would have their own knowledge of the alleged hazard, the pothole, at the time of the offer, and knew the key issue would be their ability to keep their premises free of hazards and what they had done to ensure that was the case. The defendants would have known whether there was a reasonable system of maintenance and whether inspection was being done. All of the these were key issues that the defendants could have evaluated at the time. [26] I note the defendants argue that to the extent double costs are awarded, this can only be at the time of the third formal order on June 27, 2024, when the defendants were in a position to reasonably assess and accept the plaintiff's settlement offer. I do not accept that the defendants were only in this position one week before the trial commenced. Rather, at a minimum, the defendants could easily have evaluated the claim on May 30, 2024 after the second offer, and in fact I conclude the

defendants would have been in a position to easily evaluate a claim for $125,000 on July 7, 2023 after the first offer. [27] I say this because while more information was available for evaluation at the time of the second offer of May 30, 2024, due to the examinations for discovery in December 2023 and the expert report of April 10, 2024, the first offer contained the essential components of the case with sufficient detail for the defendants to evaluate whether an offer of $125,000 was reasonable in the circumstances. I note in particular the original offer amount, which is significantly less than the amount requested in the second offer; the specifics that include indicating there were no witnesses or surveillance, so the plaintiff's evidence on her accident would be the only evidence; the important point that whether the defendants kept their premises free of hazards would be raised; the fact the plaintiff had provided medical records of posttraumatic arthritis in the ankle, ankle pain, and other medical information by this time; and specifics of case law that may be applicable for an assessment of nonpecuniary damages in this case. I do not find the lack of employment records at this time created difficulty in the assessment, as it was clear that Ms. Tommy was not working at an executive level, which may have raised some question or potential issue as to the amount of a

future loss of earning award. [28] In my view, therefore, the defendants in this case had sufficient information on which to assess the strength of the plaintiff's claim and time to do that assessment from the time of the first offer of July 7, 2023. There are no doubt variables and other factors that might impact the results and create some uncertainty in the case, but as has been argued, the point of Rule 9-1 is 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": Hartshorne at para.

25. In the circumstances of this case, the defendants knew the critical part of the case and a key issue was their own inspection/hazard safety system. That information was readily available to them, and should have alerted them to the potential weaknesses of their position well before trial. In addition, they at that time had access to important medical records. Conclusion [29] Taking all these factors into account, I conclude the offers made by the plaintiff were reasonable and ought to have been accepted from the date of the original offer of July 7, 2023. Accordingly, the plaintiff will have double costs from the time of service of that offer. "Burke J."