Does the fact that an action is ultimately dismissed in its entirety have to be taken into account in the context of double cost calculations?
British Columbia, Canada
The following excerpt is from P.S.D. Enterprises Ltd. v. New Westminster (City), 2011 BCSC 1646 (CanLII):
... [W]hen an offer made by a defendant for the purpose of achieving a pre-trial settlement is reasonably refused, the mere fact that the action is ultimately dismissed in its entirety is not a consideration with respect to double costs. To take the disposition of the action into account would result in the “hindsight analysis” that Mr. Justice Hinkson, as he then was, cautioned against in Bailey v. Jang, 2008 BCSC 1372 ... at para. 24.
In Hartshorne v. Hartshorne, 2011 BCCA 29, the court commented that an award of double costs is a punitive measure against the litigant for failure to accept an offer that ought to have been accepted. The court noted that “costs rules are in place “to encourage the early settlement of disputes by rewarding the party who makes a reasonable settlement offer and penalizing the party who declines to accept such an offer”: at para. 25.
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