Carfra Lawton LLP | Victoria BC

Surveillance video raises credibility issues, leads to double costs for the defendants

In Brar v. Ismail, 2018 BCSC 1573, a jury dismissed the plaintiff’s claim for injuries she alleged after a rear-end car accident. She had claimed a long list of injuries including traumatic brain injury, concussion, and various soft tissue complaints, and sought over $500,000 in damages at trial.

The defence had offered to settle for $50,000 about 2.5 months before trial. Three weeks before trial the defence served video surveillance evidence on the plaintiff, which showed her at a gym exercising “briskly” on a treadmill and an elliptical machine at a time when she had reported to doctors that she could not grocery shop, do recreational activities, carry anything or walk for more than 15 minutes at a time due to the accident. Five days before trial the defence* made a second offer to settle, for $65,000, which was not accepted.

After the jury dismissed the plaintiff’s claim, the defendants sought costs of the action and double costs from the dates of their first or second offers. The court essentially agreed, and ordered ordinary costs to the defendants up to and including the first 5 days of trial, and double costs after that.

The court held that the surveillance video was “compelling” and should have caused the plaintiff to know that there were issues with her credibility and that she stood less likely to win at trial as a result. There were other inconsistencies in the plaintiff’s trial and discovery testimony as well, including about her symptoms allegedly evidencing brain injury, whether she had worked at certain times since the accident, and her sources of income, which were contradicted or rebutted by other evidence.

The court held that the first defence offer was not one that ought reasonably to have been accepted, as the surveillance evidence had not yet been served; and the second defence offer could have been made sooner to give the plaintiff more time to consider her position. The fact that the defence did not serve the surveillance evidence sooner (they had it for about 2-3 months before it was served) was a factor in the consideration with respect to the discretion to award double costs.

*The report of this decision, as of Sep 19 2018, contains a typo in para. 5, which should say “[5] On May 23, the defendants offered to settle for $65,000 … .”

Case law summary by Annie Olson