The Supreme Court of British Columbia has declined to award full legal costs to a sexual assault victim after she refused an offer to settle outside the court.
More than two decades ago, David Pickton was convicted of sexual assault for an incident that took place inside a trailer near Burnaby, B.C in 1991. In the criminal trial, he was sentenced to a fine of $1,000 and one year probation.
The victim, whose identity isn’t revealed, brought forward a civil suit against Pickton. She sought a total of $1 million in punitive damages and loss of income among other things. She won the trial before a jury but was awarded only $45,000 in damages in total. As part of the civil suit, she also asked to have Pickton pay all of her legal costs of the lawsuit, but the B.C. Supreme Court disagreed.
The court ruled that the assault was on the “modest” end of the spectrum and did not warrant an award of full legal costs to the victim. Additionally, the victim had been offered a settlement of $50,000 in advance of the civil trial, which she refused. Pickton’s lawyer was happy that the court recognized the victim could have avoided tying up judicial resources by taking the offer and dropping the suit.
See: When can you start a lawsuit?
The legal costs of bringing a lawsuit vary depending on the nature of the case. In most Canadian provinces, the winning party may recover some of its costs at the end of a trial. One thing to remember is that cost awards rarely cover the successful party’s total costs as courts are often not that generous.
The trial judge looks at a number of factors to determine how much to award the successful party in legal costs. In Canada, most courts may award costs on a partial indemnity or a substantial indemnity basis.
The partial indemnity basis — as the name suggests — means the winning party gets some of its costs back. The court will balance what is fair to the successful party. It also tries to ensure the losing party’s access to the courts is not abused by making it pay all of the costs of the winner.
Under a substantial indemnity award, the winning party gets almost all of its costs back. Courts use substantial indemnity if the losing party engaged in some outrageous conduct that gave rise to the lawsuit.
One important factor is whether there was an offer on the table before trial and whether the amount was more or less than what the court actually awarded at the end. Parties are encouraged to consider reasonable offers. This will ensure that only contested disputes will go through to trial and judicial resources are used most efficiently.
Courts have full discretion over costs awards. What ultimately governs is what is fair and reasonable in each situation.
The Pickton victim was awarded costs up until the time the offer was made for $50,000. The offer came six weeks before the trial. The judge also awarded half of the cost of an accountant who testified in favour of the victim’s income loss.