Case Summary by John W. Bilawich
Re: Rules 9-1(5) and 14-1(10)
Cue v. Breitkreuz, 2010 BCSC 1232 per Justice N. Smith 
MVA PI claim – trial of liability only had been resolved in favour of the defendant prior to new rules coming into effect.  Defendant applied for double costs based on having made a $1 offer to settle under former Rule 37(24).  Plaintiff had offered to waive his claim in excess of$25,000 in order to bring the matter within the jurisdiction of the Small Claims and proposed a transfer to Small Claims.  Defence counsel would not agree because he was concerned a transfer would result in greater delay.
Justice Smith said (para 3) that the double costs result is no longer automatic because Rule 9-1(5) now gives the court broad discretion to decide whether and to what extent it will give effect to a settlement offer. 
Rule 14-1(10) is intended to discourage parties whose claims can  be decided in Provincial Court from pursuing them in Supreme Court.  Small Claims rules do not provide for an award of costs other than filing and service fees and “reasonable charges and expenses” that “directly relate to the conduct of the proceeding”. 
The Plaintiff recognized the matter should be brought in Small Claims and was prepared to transfer it.  Had that been done, neither party would have been entitled to costs.  The action remained in Supreme Court subject to an agreement to still limit the claim to what would be awarded in Small Claims.  Had liability been decided the opposite way, Rule 14-1(10) would have been a bar to an award of costs, other than disbursements, in favour of the Plaintiff.  Fairness required the same limitation apply to the successful Defendant, particularly as the Defendant did not agree to the transfer to Small Claims.  His Lordship declined to award any costs to the Defendant other than disbursements.  It was not necessary to consider the offer to settle because there are no costs to double.  Another issue raised was whether disbursements should be determined in accordance with Supreme Court practice or Small Claims Court practice, because what would normally be allowed as a disbursement in Small Claims is different.  Justice Smith said disbursements must be assessed according to the rules and practice of the Supreme Court.