FORMAL OFFERS UNDER RULE 9-1 OF THE BC SUPREME COURT CIVIL RULES

[White Wolf]

FORMAL OFFERS UNDER RULE 9-1 OF
THE BC SUPREME COURT CIVIL RULES

I. Fundamentals ............................................................................. 1
II. Triggering an Effective Formal Offer........................................ 4
III. The Question of Liability versus Quantum ............................. 5
IV. Knowledge of Rejecting Party.................................................. 5
V. Relative Financial Circumstances ........................................... 6
VI. The Role of Insurance............................................................. 6
VII. Complex Causation ............................................................... 7
VIII. Claims Under $25,000 in ..................................................... 7
IX. Other Factors ........................................................................ 8
X. Best Practices........................................................................ 8
XI. Conclusion............................................................................ 9
XII. Appendix—Jack v. Tekavec, 2011 BCSC 171.................... 10

Since 1993, the Formal Offer has been a tool available to litigants that can assist parties and their representatives more effectively manage risk and simultaneously reduce pressure on the courts. From a macro perspective this is desirable as it reduces the total number of claims before the courts and accordingly allows their resources to be focused on truly controversial and intractable matters.
1 Concerns about access to justice from a micro perspective have motivated amendments to the Rules that have added several layers of complexity to this topic and the case law.

2 In this paper, I will attempt to identify how the discretionary elements found in Rule 9-1(6) have been considered since the implementation of the BC Supreme Court Civil Rules, B.C. Reg. 168/2009, in order that parties may be able to have a clearer idea of what a given Offer may mean to their case.

I. Fundamentals
When a reasonable Formal Offer is not accepted, the offeror may get an award for taxable costs under Appendix B to the BC Supreme Court Civil Rules and conversely the rejecting party is therefore exposed to that higher exposure—be it an award for taxable costs for which the offering party would

1 This rationale is reflected in the references found in some cases to Offers, which had they been accepted, would have resulted in a “saving to the parties and to the court” (e.g., see King v. ICBC, 2010 1742, at para 31 and Martin v. Lavigne, 2010 BCSC 1610 at para. 8).

2 Consider Mr. Justice Dley’s comments about the “chilling effect” a costs award can have on meritorious claims in Jayetileke v. Blake, 2010 BCSC 1478, at para. 32.

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