Carfra Lawton LLP | Victoria BC

Plaintiff penalized for refusing to accept reasonable settlement offer

The plaintiff in Vander Maeden v Condon 2014 BCSC 677 was a legally blind 65-year-old widower on disability. He was involved in two car accidents which were tried at the same time. At trial he was awarded $121,600 ($110,000 for general damages, $10,000 for future care, and $1,600 in special damages) for the first accident and $0 for the second. A month before trial the defendants issued a formal offer for $125,000, plus assessable costs to the date of the offer, to settle both actions. An explanation was given with the offer saying it represented approximately $100,000 for general damages, $20,000 for future care, and $5,000 for special damages.

On hearing the application for costs, Justice Gaul held that in regard to the first action the plaintiff was entitled to costs and disbursements to the date of the offer but none after it.  In regard to the second action the defendant was entitled to her costs. In exercising his discretion, Justice Gaul found that the plaintiff had ample time to consider the offer and its rationale. A comprehensive pre-trial consideration of the evidence, combined with an objective assessment should have led the plaintiff to conclude that the offer was reasonable. While the monetary difference was small (i.e. $3,600) Justice Gaul held that there should be costs consequences for the plaintiff’s decision to reject the offer.  The judge refused to order the plaintiff to pay the defendant’s costs and disbursements in the first action after the date of the offer because doing so would be unduly punitive and would severely detract from the compensation Mr. Vander Maeden was entitled to.

Case summary by: Brian Hoffman