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For well over a year, ICBC has been making low-ball offers to injured people, forcing them to either accept much less than their claim is worth or go to trial. This perverse tactic has clogged up our court system resulting in many cases being adjourned to a later date due to a lack of judicial resources. What’s more frustrating, once such a case gets in front of a judge, ICBC often quickly retreats from its ridiculous low-ball offer and suggests something much more reasonable to the Court. It makes one wonder why ICBC doesn’t just make injured people reasonable offers to begin with. Forcing otherwise settleable cases to trial only drives up costs for drivers and taxpayers.
In Johnson v. Heer, 2020 BCSC 1751, ICBC did just that. In Johnson, ICBC offered an injured female plaintiff $41,000 to settle her claim. ICBC agreed that the plaintiff’s out-of-pocket expenses related to her injuries were over $13,000. That meant that ICBC was allocating less than $28,000 for her pain and suffering, past and future wage loss, and future care.
The plaintiff offered to accept $80,000 to settle her claim. When ICBC wouldn’t budge, the case went to trial.
Despite only offering the plaintiff $40,000, at trial, ICBC told the judge that they thought her claim was worth between $69,943 and $111,943! ICBC didn’t call any evidence and barely defended the claim at all.
In the end, the judge awarded the plaintiff over $147,000. This included $75,000 for pain and suffering, $9,500 for past wage loss, and $40,000 for future wage loss.
Because the Court awarded the plaintiff substantially more than the $80,000 she would have accepted, the plaintiff asked the Court to award her double costs. As we’ve discussed before, court costs are meant to compensate a successful litigant for some of their legal fees incurred in prosecuting a case. Double costs are meant to punish a litigant for failing to accept a reasonable offer.
In addition to asking for double costs, the plaintiff asked for “uplift” costs. Uplift costs are normal costs times 1.5. In this case, that meant the plaintiff was essentially seeking triple costs due to ICBC’s behaviour.
In ruling in favour of the plaintiff, the judge berated ICBC for their ridiculous tactics:
[33] This brings me to what I consider to be the unusual circumstances that warrants an award of uplift costs on the specific facts of this case. At trial, the defendant submitted that the plaintiff’s damages ought to be in the range of $69,943 to $111,943. The lower range of the defendant’s submission was some $28,942 higher than the defendant’s own formal offer to settle, which remained open until the eve of trial. Even more unusual is that the upper range of the defendant’s submission was $31,943 higher than the plaintiff’s final formal offer to settle, (which also had remained open until the eve of trial), and $14,443 higher than the plaintiff’s original formal offer to settle. [Emphasis in original text]
[34] In these circumstances, it would appear the only reason the defendant did not accept either of the plaintiff’s offers was to simply force the plaintiff to go to trial. This conduct required the plaintiff to expend even more funds than it already had. It is difficult to fathom why the defendant would force the trial to proceed when it could have settled the trial for less money than it submitted the plaintiff was entitled to at trial.
[35] While the defendant is not required to make an offer, it did. Moreover, while the defendant is not required to accept an offer, they have agreed that they should have. Clearly, this concession is not based solely upon the benefit of hindsight after the judgment was rendered. The defendant knew at the time of trial that it should have accepted the plaintiff’s offer, as evidenced by their submission at trial that the range the plaintiff was entitled to was more than the plaintiff had offered. Instead, the defendant forced the plaintiff to trial to obtain what the defendant itself obviously considered to be a fair result, when there was a clear and open way to avoid the need for the trial at all.
[36] Moreover, I note that this trial proceeded a matter of just a few weeks after the court resumed limited operations following its closure due to the COVID‑19 pandemic. The pandemic was at its relatively early stages at the time of the trial, and public health officials had urged British Columbians to limit their exposure to public places to only essential matters. In the circumstances I have described, attendance at this trial was not essential and it exposed the plaintiff, her husband, her mother, her counsel and defence counsel to an increased risk of exposure to the virus. In these unusual circumstances, I find that an award of costs on the usual scale would be unjust, and I exercise my discretion to award uplift costs to the plaintiff for trial preparation and attendance at trial for items 34 and 35 of the Tariff. [Emphasis added]
This case serves as a good example of the despicable tactics that ICBC is employing that further victimize already injured people and drive-up the cost of insurance in this province.
