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Costs Consequences for Failing to Consider Weaknesses of Expert Evidence

In Wiebe v. Wiebe, 2018 BCSC 1062 the plaintiff sued for personal injuries from a car accident. At trial, after deductions for accident benefits, the plaintiff was awarded about $500 less than the amount that the defendants had offered to settle before trial. The defendants then sought their costs from the date of their offer; but the nominal amount by which they beat their offer at trial was of little assistance to the court in deciding costs.

Instead, the court held that the plaintiff should have accepted the defendants’ pre-trial offer in light of weaknesses in the opinion evidence of her vocational expert, which were evident after the expert testified and was cross-examined by video deposition before trial. The court held that the opinion lacked evidentiary basis and the expert had taken on the role of an advocate, and for that reason alone the plaintiff should have accepted the defendants’ pre-trial offer.

The court noted that costs awards should be used only to penalize unreasonable litigation and not to penalize incorrectly predicting the outcome of trial. The court held that it would be unfair to deprive the plaintiff of costs from the date of the defendants’ offer and to also award the defendants costs from that date. This would have resulted in the plaintiff being undercompensated for her injuries. As a result, the plaintiff received costs but only to the date of the defendants’ pre-trial offer; and the defendants received no costs.

Case summary by Amy Coad