How has 9-1(6)(c) been interpreted in the context of litigation costs in a personal injury case?

British Columbia, Canada


The following excerpt is from Cairns v. Gill, 2011 BCSC 420 (CanLII):

Until recently, the funding of litigation costs by an insurer, as a matter of the relative financial circumstances of the parties under 9-1(6)(c), was not a proper consideration in relation to costs. This is no longer the case. In Smith v. Tedford, 2010 BCCA 302, Lowry J.A. stated: 19 While I recognize arguments over the implications of a defendant's insurance coverage being considered in relation to an award of costs may go back and forth, like the judge I consider precluding such from consideration renders an assessment of the parties' relative financial circumstances, at least in a case of this kind, very artificial indeed. Clearly, with ICBC having assumed the defence, the financial ability to defend was much greater than the financial ability to prosecute, and that is of no small importance to considering whether and to what extent the financial circumstances of the parties, relative to each other, bear on an award of costs where, as here, there has been an offer of settlement made ten days before a trial for the assessment of personal injury damages which was not accepted until the seventh day of the trial.

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