In a stunning act of judicial deference this keen use of the broad discretion to award costs has allowed a personal injury claimant to recovery the legal costs of a claim despite dismissal of the action.
The claimant was involved in two car accidents about 3 years apart. In the first accident the defendant admitting fault and the claimant was awarded a meager $77,000 which was unsuccessfully appealed. The second accident was minor and she “did not experience much of a jolt”, and the car accident did not alter her pre-existing symptoms and did not suffer any physical disability.
The second car accident had not caused any compensable damage. The only issue at trial was whether the second accident had aggravated or prolonged the effects of the first car accident injuries. The trial judge concluded that it had not, but that it had been reasonable to deal with the two accidents together.
The trial judge estimated that approximately one hour of trial time was devoted to evidence concerning the second accident.
Although it is unusual for a trial judge to award costs to an unsuccessful plaintiff it is not barred by the Rules of Court. As the Court of Appeal pointed out:
Here the principal considerations were the de minimus nature of the additional time required…
In my view these considerations are not arbitrary, but rather were connected to the case before the trial judge. They fall within the broad discretion afforded to trial judges following the elimination of the qualification “for good cause” from our rules. Accordingly, I would not give effect to this ground of appeal.(Tisalona v. Easton,2017 BCCA 272).
The claimant also rejected an offer to settle of $88,000 made before the trial. The issue was similar to the one addressed by this court in Wafler v. Trinh, 2014 BCCA 95. In Wafler, the trial judge had not erred in this assessment, pointing out at para. 65 that:
…if there is a reasonable degree of confidence in the evidence that supports his theory, then it seems to me he should not be unduly penalized when the trier of fact ultimately accepts evidence to the contrary.
In this injury case the trial judge was in the best position to assess the reasonableness of the claimant’s conduct at the time of the offer and the judge considered the information available to the plaintiff at the time the offer was made and concluded that it was not unreasonable for her to have rejected the offer.