1. IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: Jones v. Arjun,
2015 BCSC 1881
Date: 20151015
Docket: M102282
Registry: Vancouver
Between:
Thomas Jones a.k.a. Thomas Jones Jr.
Plaintiff
And
Yankaia Arjun and Yellow Cab Company Ltd.
Defendants
Before: The Honourable Madam Justice Ballance
Ruling on Costs
Counsel for the Plaintiff: K.R. Taylor
Counsel for the Defendants: A. Mihailovic
Written Submissions filed: April 15, 2015
Place and Date of Judgment: Vancouver, B.C.
October 15, 2015

2. Jones v. Arjun Page 2
[1] In my Reasons for Judgment, indexed at 2013 BCSC 1313, I awarded the
plaintiff, Thomas Jones, damages totalling $268,420.20 in respect of injuries he
sustained in a motor vehicle accident that occurred on August 9, 2008 (the “First
Accident”).
[2] Before the trial of this proceeding concerning the First Accident was heard,
Mr. Jones was involved in a subsequent motor vehicle accident on June 23, 2011
(the “Second Accident”). At the time of trial, he had not commenced an action in
respect of the Second Accident and did not do so until after this trial was concluded.
His counsel advised that a Notice of Discontinuance in respect of that proceeding
was filed after pronouncement of judgment in this matter.
[3] Mr. Jones seeks an award of costs of this proceeding at Scale B and
disbursements through to June 1, 2012, being the date of service upon the
defendants of his offer to settle (the “Offer to Settle”). He applies for double costs
after that date, together with costs of this application.
BACKGROUND
● Divisible or Indivisible Injuries
[4] In light of the fact that Mr. Jones had been involved in two accidents, the
issue arose in this proceeding as to whether the injuries he sustained were divisible
or indivisible as between the two collisions. That factual determination was relevant
to both the causation and damages: Moore v. Kyba, 2012 BCCA 361 at paras. 36
and 37.
[5] At trial, Mr. Jones asserted that the injuries he suffered in the Second
Accident had aggravated the injuries inflicted upon him by the First Accident. He
tendered expert medical evidence that supported his contention. The defendants
did not call any expert medical evidence to contradict that expert evidence.
[6] I concluded that Mr. Jones’s injuries were indivisible, stating at paras.162 and
163 of my Reasons:

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[162] Drawing on Dr. le Nobel’s opinions, I find that had the 2008 Accident
not occurred Mr. Jones would probably have been more resilient to the
effects of the 2011 Accident, and that the former made him more vulnerable
to the effects of the latter. The evidence establishes that it is more likely than
not that the 2011 Accident significantly aggravated Mr. Jones’s compromised
low back and other spinal symptoms, including his neck and the region
between his shoulder blades, and the pain along his lower right side. It also
aggravated his headache symptoms brought on by the 2008 Accident. The
probabilities of the situation indicate that in all likelihood the exacerbation of
these ongoing symptoms adversely affected Mr. Jones’s downcast mood and
low demeanour.
[163] The evidence amply establishes that the injuries flowing from the 2011
Accident merged with the residual injuries of the 2008 Accident to create an
injury that is not attributable to one particular defendant and cannot be
distinguished from one another. Put another way, the evidence does not
support a finding that the 2011 Accident caused separate and divisible
injuries to Mr. Jones. To the contrary, it forcefully compels the conclusion
that the injuries flowing from the 2011 Accident were indivisible from the
injuries caused by the 2008 Accident and that together they constitute a
single indivisible injury to Mr. Jones.
● Settlement Offers
[7] Mr. Jones’s Offer to Settle, served on the defendants on June 1, 2012, was in
the amount of $250,000 new money, plus costs and disbursements. It was open for
acceptance until June 29, 2012, which was the last business day before the
commencement of the first day of trial.
[8] On June 5, 2012, the defendants served Mr. Jones with an offer to settle.
Their offer was in the amount of $129,678, plus costs and disbursements. It too was
open for acceptance until June 29, 2012.
[9] Both offers were confined solely to the settlement of this action commenced
in respect of the First Accident, and were both silent about any claims that Mr. Jones
might have arising from the Second Accident.
[10] Neither side accepted the settlement offer presented by the opposing party,
and the matter proceeded to a seven day trial.

4. Jones v. Arjun Page 4
● Legal Framework
[11] Rule 9-1 of the Supreme Court Civil Rules governs the relationship between
costs and formal offers to settle. The court has a broad discretion to determine
whether cost consequences ought to flow in cases where an offer to settle has been
made: Maras v. Seemore Entertainment Ltd., 2014 BCSC 1842. The predominant
rationale underlying Rule 9-1 is to promote the early settlement of disputes. It
attempts to do so by empowering the court to reward the party who has made a
reasonable settlement offer, and to attach consequences in the form of an
unfavourable costs award to the party who refuses to accept a reasonable
settlement offer: Hartshorne v. Hartshorne, 2011 BCCA 29 [Hartshorne].
[12] One of the cost options available to the court under Rule 9-1(5)(b) is to award
double costs of all or some of the steps taken in the proceeding after the delivery or
service of an offer to settle. Rule 9-1(6) sets out a list of considerations, including
the catch-all provision of “any other factor the court considers appropriate”, that the
court may turn its mind to in exercising its wide discretion under Rule 9-1(5). They
are:
(a) whether the offer to settle was one that ought reasonably to have been
accepted, either on the date that it was delivered or served or on any
later date;
(b) the relationship between the terms of settlement offered and the final
judgment of the court;
(c) the relative financial circumstances of the parties;
(d) any other factor the court considers appropriate.
[13] Whether a settlement offer is reasonably capable of acceptance is not to be
evaluated with the benefit of hindsight or by reference to the ultimate outcome:
Bailey v. Jang, 2008 BCSC 1372 (S.C.); E.(A.) (Litigation guardian of) v. J.(DEW.),
[2009] B.C.J. No. 748, 91 B.C.L.R. (4th) 372 (S.C.); Hartshorne at para. 27. The
notion of reasonableness in the context of Rule 9-1(6)(a) is to be considered by
reference to the recipient’s knowledge of the circumstances at the time that the offer
was made and during the period it was left open for acceptance: Martin v. Laving,

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2010 BCCA 1610 [Martin]. In contrast, consideration of the balance of the relevant
factors under Rule 9-1(6) does engage hindsight: Lumanlan v. Sadler, 2009 BCSC
142, 2009 CarswellBC 300 (S.C.).
[14] In Hartshorne, at para. 27, the Court of Appeal endorsed consideration of the
following factors in determining whether an offer ought reasonably to have been
accepted:
 the timing of the offer;
 whether the offer bore some relationship to the claim (as distinct from
being a “nuisance offer”);
 whether the offer could be easily evaluated; and
 whether a rationale for the offer had been provided.
[15] An offer that amounts to nothing more than a “shotgun offer” or an enticement
to the plaintiff to effectively walk away from the claim or otherwise qualifies as a
nuisance offer along the lines contemplated by the Court in Hartshorne, does not
truly provide an incentive to the plaintiff to settle. It therefore does not rise to an
offer that a party ought to reasonably accept.
[16] That is not to say, however, that an offer that is nominal will necessarily be
considered unreasonable; there are circumstances where a nominal offer will be
reasonably capable of acceptance: Martin at para. 13; P.S.D. Enterprises Ltd. v.
New Westminster (City), 2011 BCSC 1646; Habib v. Jack, 2011 BCSC 1294.
[17] A finding that the recipient acted reasonably in declining the offer does not
necessarily close the inquiry. There is authority that double costs or another costs
award against the party who received the offer may still be warranted in
circumstances where the other informing factors, such as the relationship between
the proposed settlement terms and the outcome at trial, indicate that the offer must
be given a degree of weight: see, for example, Jackson v. Yusishen, 2014 BCSC
406; Wafler v. Trinh, 2012 BCSC 1708, aff’d 2014 BCCA 95. That said, this Court
has recently remarked on the difficulty in conceiving of a situation in which double
costs should be awarded where it has been determined that the recipient party ought

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not to have accepted the offer: CFI Trust (Trustee of) v. Royal Bank of Canada,
2014 BCSC 53 at para. 6, 2014 CarswellBC 85 (S.C.).
DISCUSSION
[18] The defendants dispute Mr. Jones’s entitlement to double costs, despite the
fact that he was awarded damages that exceeded the amount of the Offer to Settle.
Their position is that he should only have his Scale B costs and reasonable
disbursements through trial, and they seek costs of this application.
[19] The defendants’ principal argument disentitling Mr. Jones to double costs
focused on the factor of whether the Offer to Settle ought reasonably to have been
accepted. Put broadly, they assert that it was not reasonably capable of acceptance
because it only contemplated the resolution of this proceeding, being the action
concerning the First Accident, and the ultimate award for damages was for both
actions. Building on that, the defendants point out that the Offer to Settle could have
made it clear that the settlement proffered by Mr. Jones was in satisfaction of his
claims for injuries pertaining to both accidents, thereby bringing it in line with the
result achieved at trial. They contend that had they accepted the Offer to Settle in
the absence of such a provision, it would have been open to Mr. Jones to pursue his
claim in respect of the Second Accident after he received the settlement payment for
the First Accident, thereby raising the specter of a potential double recovery. The
defendants say that, based on the foregoing, it was unreasonable to accept the Offer
to Settle.
[20] In my view, the defendants’ position must fail.
[21] I would observe at the outset that the trial outcome appears to have informed
the defendants’ assessment of the reasonableness of the Offer to Settle. That is the
wrong evaluative framework to apply when considering whether a formal offer ought
reasonably to have been accepted. The reasonableness of Mr. Jones’s Offer to
Settle is to be determined from the defendants’ perspective and with regard to their
knowledge of the surrounding circumstances from June 1 to 29, 2012, inclusive.

7. Jones v. Arjun Page 7
[22] The report of Mr. Jones’s medical expert, Dr. le Nobel, a physiatrist, was
served upon the defendants on November 23, 2011, being slightly better than six
months before delivery of the Offer to Settle. In his report, Dr. le Nobel opined:
Absent the [First Accident and Second Accident] I feel [Mr. Jones] would not
as likely have had the reduction in productivity such as he has since the [First
Accident].
Absent the [First Accident], he would have likely been more resilient to the
effects of the [Second Accident]. Absent the motor vehicle collisions he
would have potentially been better able to cope with the psychological and
emotional challenges of his difficult marital relationship.
...
Absent the [First Accident and Second Accident] he would more likely have
been able to maintain his capacity for interacting with others at a higher level
than has been the case.
Thomas Jones suffered injuries to his spine with the [First Accident]. His
description today is of worse pain in the lumbar spine following the [First
Accident]. With the [Second Accident], he had as well aggravation of his
spine more intense in the cervical spine and paraspinal areas.
[23] Dr. le Nobel diagnosed Mr. Jones’s pain as chronic. He described the
prognosis as guarded and opined that Mr. Jones would continue to suffer and feel
limited in his capabilities, most likely for the next several years and possibly longer.
As mentioned, the defendants tendered no medical evidence to contradict Dr. le
Nobel’s opinions.
[24] Dr. le Nobel’s report provided unchallenged medical evidence sufficient to
ground a finding at trial that the injuries Mr. Jones sustained in the two collisions
were a single indivisible injury. It follows that, several months before they received
the Offer to Settle, the defendants were alerted to the risk that this Court might make
such a finding. They must also be taken to have appreciated that they were
exposed to the risk that they alone would be jointly and severally responsible to
Mr. Jones in respect of those indivisible injuries and that their entitlement to seek
contribution and indemnity from the driver of the Second Accident was not Mr.
Jones’s concern.

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[25] At the time the defendants received the Offer to Settle, they had also been
served with the report of Mr. Jones’s economic expert, Darren Benning.
Mr. Benning had calculated Mr. Jones’s net past income loss at $120,865 or
$209,623, depending on the analytical approach adopted. He also applied two
models to calculate Mr. Jones’s loss of future earning capacity. One formula yielded
a loss of $339,600; the other, a loss of $577,320.
[26] Within the relevant timeline the defendants had obtained an economic report
from their own expert, Kevin Turnbull. Using two different formulae, Mr. Turnbull
calculated Mr. Jones’s net past income loss at $24,000 and $132,000, respectively.
Likewise relying on two approaches to calculate Mr. Jones’s loss of future earning
capacity, Mr. Turnbull’s evidence was Mr. Jones would sustain a loss of $130,550 or
$587,475, if tabulated to age 75.
[27] Based on the reports of the economic experts, the defendants were also
aware of their exposure to the potentially significant magnitude of Mr. Jones’s past
and future loss which, of course, would be in addition to the quantum of his
non-pecuniary damages.
[28] Perhaps most telling of the pertinent circumstances bearing on the contextual
reasonableness of the Offer to Settle, is the defendants’ own conduct. When they
made their settlement offer just a few days after receipt of the Offer to Settle, they
did not seek a release from Mr. Jones with respect to any claims he may have had
relative to the Second Accident, or purport to address such claims in any way. The
defendants’ assertion that the Offer to Settle was not reasonably capable of
acceptance because it did not contain such a provision – a provision that the
defendants themselves did not consider sufficiently crucial for the purposes of
making their own formal offer within the same time frame – rings hollow and
undermines the sway of their position on this application.
[29] Mr. Jones relies on the trial decisions in Bradley v. Groves, 2009 BCSC 1882,
as well as the decision on appeal (indexed at 2010 BCCA 361) in support of his

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submission that he is entitled to double costs regardless of the indivisible injury
issue.
[30] The plaintiff in Bradley had been involved in two motor vehicle accidents. The
trial was brought under the fast-track provision of Rule 66 and dealt exclusively with
the driver in the first accident. As is the case here, the driver in the second accident
in Bradley had not been sued at the time of trial. The trial judge found that the
injuries sustained by the plaintiff in the two accidents were indivisible. The
defendant involved in the first accident was liable to pay the entirety of the damages
awarded to the plaintiff flowing from both accidents.
[31] Prior to trial, the plaintiff in Bradley had made an offer to settle for an amount
less than the sum awarded at trial. The trial judge awarded the plaintiff double costs
under the tariff. There is no suggestion in the Bradley decision that the offer to settle
addressed the plaintiff’s potential claims in respect of the second accident.
[32] On appeal, the defendant argued that the trial judge erred in awarding the
plaintiff double costs “under the tariff”, as opposed to double the default Rule 66
fixed costs of the trial. Plaintiff’s counsel conceded the point and the Court of
Appeal agreed. The decision is noteworthy for our purposes in that the Court of
Appeal did not disturb the award of double costs per se in circumstances where the
trial judge had determined in a proceeding dealing only with the first accident, that
the injuries flowing from it and the second accident were indivisible.
[33] None of the authorities relied on by the defendants or their reference to the
remark made by the author of a paper titled, Formal Offers Under Rule 9-1 of the
B.C. Supreme Court Rules (Continuing Legal Education Society of British Columbia,
2011), nor the case cited in the accompanying footnote, advanced their position on
this application.
[34] The Offer to Settle was articulated in clear language and was not a nuisance
offer by any measure. Liability was off the table. The defendants were sufficiently
aware of the case that Mr. Jones intended to present at trial and of the risks they

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faced in light of the anticipated expert evidence. They would have recognized that
the amount of the Offer to Settle fell within the range of reasonable trial outcomes
and they had an adequate opportunity to evaluate it prior to trial. The factor of the
parties’ relative financial circumstances was not addressed by the defendants and,
in any event, I share Mr. Jones’s view that it is not a significant factor in the case at
hand. There is no other factor appropriate to the inquiry that would militate against
making an award of double costs in favour of Mr. Jones.
[35] I conclude that, in all the circumstances, the Offer to Settle was one that
ought reasonably to have been accepted by the defendants.
[36] Mr. Jones is entitled to his costs of this proceeding at Scale B, as well as his
disbursements, up to and including June 1, 2012, and to his double costs plus
disbursements from June 2, 2012 thereafter. He is also entitled to the costs of this
application.
“Ballance J.”