Carfra Lawton LLP | Victoria BC

Failure to accept “walk away” offer results in double costs award

In Johnson v. Jamieson 2015 BCSC 648 the court awarded the defendant double costs from the date of delivery of a “walk away” offer to settle to the plaintiff, to waive costs in exchange for a dismissal. The offer was delivered within just 2 months of the action being commenced. A trial proceeded just over 2 years later.

The action arose from a pedestrian-motor vehicle accident. The plaintiff alleged that the defendant vehicle had rolled forward at an intersection, as he stepped out of a crosswalk and cut a corner, into a traffic lane, to the curb. The defendant denied liability and alleged the plaintiff had simply tripped on a storm grate, injuring his knee. At trial the plaintiff called only his girlfriend as a witness to the accident. The court found the plaintiff’s and his girlfriend’s evidence on how the accident had occurred was rife with inconsistencies and probabilities, and preferred the defendant’s evidence. The action was dismissed.

In subsequent costs proceedings the court held that the weaknesses of the plaintiff’s case on liability were quite apparent, and that the long period between the tender of the offer and trial afforded him ample time to consider the offer. The court also found that the offer was reasonably capable of acceptance.

The court reiterated judicial comments in previous cases, that costs rules should be utilized to have a winnowing function in the litigation process, and require litigants to make careful assessments of the strengths or weaknesses of their cases at commencement and throughout the course of litigation. The rules should discourage the continuance of doubtful cases, and should encourage reasonable settlements.

Case law summary by: Reza Sadeghi-Yekta, Articled Student