Evans v. Jensen, (2011) 307 B.C.A.C. 150 (CA)

• Judge: Prowse, Newbury and Hinkson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: June 16, 2011
• Jurisdiction: British Columbia
• Citations: (2011), 307 B.C.A.C. 150 (CA);2011 BCCA 279

Evans v. Jensen (2011), 307 B.C.A.C. 150 (CA);

    519 W.A.C. 150

MLB headnote and full text

Temp. Cite: [2011] B.C.A.C. TBEd. JN.030

Anjula Evans, by her Litigation Guardian Jeanette Dadson (respondent/plaintiff) v. Damyn Jensen (appellant/defendant)

(CA037128; 2011 BCCA 279)

Indexed As: Evans v. Jensen

British Columbia Court of Appeal

Prowse, Newbury and Hinkson, JJ.A.

June 16, 2011.

Summary:

The plaintiff obtained judgment against the defendant in a motor vehicle negligence action. The defendant's offer to settle, made 10 days before trial, far exceeded the judgment obtained. The trial judge awarded the plaintiff costs and disbursements up until the date of the offer. Notwithstanding both counsel agreed that the judge had a discretion to award the defendant single costs after the date of the offer, the judge ruled that rule 37B(5) was a complete code and ousted the court's discretion to award a defendant single costs subsequent to an unaccepted settlement offer (see [2008] B.C.T.C. Uned. 937). The defendant appealed.

The British Columbia Court of Appeal dismissed the appeal.

Practice - Topic 6931

Costs - General principles - Discretion of court - [See Practice - Topic 7242 ].

Practice - Topic 7242

Costs - Party and party costs - Offers to settle - Jurisdiction - The defendant offered to settle a motor vehicle negligence action 10 days before trial - The plaintiff was successful at trial, but her judgment was significantly lower than the defendant's settlement offer - The trial judge awarded the plaintiff costs and disbursements up to the date of the offer - The defendant sought single costs from the date of the offer - Rule 37B(5) provided that where a settlement offer had been made "the court may do one or both of the following: (a) deprive a party, in whole or in part, of costs to which the party would otherwise be entitled in respect of the steps taken in the proceeding after the date of delivery 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 of the offer to settle" - The British Columbia Court of Appeal held that the trial judge was correct in denying the defendant single costs, as rule 37B(5) limited the court's general discretion respecting costs, restricting costs to the two stated options - The court stated that "reading the words of rule 37B(5) in their grammatical and ordinary sense supports the trial judge's interpretation that it provides for 'one or both' of the options set out in rule 37B(5), but no additional options, including single costs. ... there is no room in rule 37B(5) for the exercise of inherent jurisdiction to read in an option which is not expressly provided for in that rule. I am not persuaded that the absence of a provision for single costs represents a gap in the rule 37B(5).".

Practice - Topic 7243

Costs - Party and party costs - Offers to settle - Effect of failure to accept - [See Practice - Topic 7242 ].

Cases Noticed:

Robyrts v. Roberts (2009), 282 B.C.A.C. 12; 476 W.A.C. 12; 78 R.F.L.(6th) 33; 2009 BCCA 574, refd to. [para. 2].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 15].

Information Commissioner (Can.) v. Canada (Minister of National Defence) (2011), 416 N.R. 105; 2011 SCC 25, refd to. [para. 15].

Strata Plan LMS 1220, Owners v. North Fraser Holdings Ltd. et al., [2003] B.C.T.C. 1051; 2003 BCSC 1051, refd to. [para. 16].

Kittson v. Ravelli Enterprises (1964), 48 W.W.R.(N.S.) 437 (B.C.S.C.), refd to. [para. 20].

Miller v. Lawer (1964), 49 W.W.R.(N.S.) 497 (B.C.S.C.), refd to. [para. 20].

Wedlock v. Mezzil (1967), 62 W.W.R.(N.S.) 190 (B.C.S.C.), refd to. [para. 20].

Mackenzie v. Brooks et al. (1999), 130 B.C.A.C. 95; 211 W.A.C. 95; 1999 BCCA 623, refd to. [para. 23].

British Columbia (Minister of Forests) v. Okanagan Indian Band et al., [2003] 3 S.C.R. 371; 313 N.R. 84; 189 B.C.A.C. 161; 309 W.A.C. 161; 2003 SCC 71, refd to. [para. 24].

Fulton v. King (1987), 22 C.P.C.(2d) 73 (B.C.S.C.), refd to. [para. 26].

Vukelic v. Canada (1997), 94 B.C.A.C. 147; 152 W.A.C. 147; 37 B.C.L.R.(3d) 217; 9 C.P.C.(4th) 159 (C.A.), refd to. [para. 26].

Jamieson v. Duteil (2001), 156 B.C.A.C. 296; 255 W.A.C. 296; 92 B.C.L.R.(3d) 208; 2001 BCCA 516, refd to. [para. 27].

Brown v. Lowe et al. (2002), 162 B.C.A.C. 203; 264 W.A.C. 203; 97 B.C.L.R.(3d) 246; 2002 BCCA 7, refd to. [para. 27].

Cridge v. Harper Grey Easton & Co. (2005), 207 B.C.A.C. 221; 341 W.A.C. 221; 2005 BCCA 33, leave to appeal denied [2005] 2 S.C.R. vii; 346 N.R. 395; 225 B.C.A.C. 319; 371 W.A.C. 319, refd to. [para. 27].

Roach v. Dutra (2010), 288 B.C.A.C. 141; 488 W.A.C. 141; 5 B.C.L.R.(5th) 95; 2010 BCCA 264, refd to. [para. 28].

Bedwell v. McGill et al. (2008), 263 B.C.A.C. 186; 443 W.A.C. 186; 86 B.C.L.R.(4th) 343; 2008 BCCA 526, refd to. [para. 44].

Jakubcak v. Melnyk (Dr. R.A.) Inc., [2011] B.C.A.C. Uned. 39; 2011 BCCA 31, refd to. [para. 47].

Statutes Noticed:

Rules of Court (B.C.), Supreme Court Rules, rule 37B(4), rule 37B(5), rule 37B(6) [para. 17].

Supreme Court Rules (B.C.) - see Rules of Court (B.C.), Supreme Court Rules.

Counsel:

A.M. Gunn, Jr., and B.L. Fixter, for the appellant;

No one appeared for the respondent;

George H. Copley, Q.C., amicus curiae.

This appeal was heard on May 20, 2011, at Vancouver, B.C., before Prowse, Newbury and Hinkson, JJ.A., of the British Columbia Court of Appeal.

On June 16, 2011, Prowse, J.A., delivered the following judgment for the Court of Appeal.