Executive Summary: Key Legal and Evidentiary Issues

• The dispute involved claims for unpaid commission, bonus, and contractual termination pay under an employment contract.

• Mr. Annable alleged Devencore breached a statutory trust related to his employment.

• The court considered whether Devencore was required to disclose an insurance policy under Rule 7-1(3).

• The impact of Devencore’s non-disclosure of the insurance policy on its entitlement to costs was examined.

• The reasonableness of Devencore’s settlement offers and the appropriateness of awarding double costs were assessed.

• The court evaluated whether any prejudice resulted from the non-disclosure of the insurance policy.

Facts and outcome of the case

Background and parties

Mark Graham Annable filed a notice of civil claim on July 31, 2018, against Devencore Company Ltd. The claim arose from his employment as a real estate broker with Devencore. Mr. Annable sought amounts he said were due under his written contract of employment, including commission, bonus, and contractual termination pay, and alleged that Devencore had breached a statutory trust. Devencore defended the claim and filed a counterclaim, which was only pursued as a setoff if Mr. Annable succeeded on his claim.

Procedural history

The trial took place over two weeks in January 2024. The court issued reasons for judgment indexed at 2024 BCSC 1503. Devencore was entirely successful in defending Mr. Annable’s claim at trial. The counterclaim was dismissed, as it was only relevant if Mr. Annable had succeeded. After the trial, Devencore applied for costs and double costs from after May 25, 2020, or alternatively after January 3, 2024. Mr. Annable applied for disclosure of any insurance policy under which an insurer may be liable to satisfy all or part of a judgment and for verification of Devencore’s fourth amended list of documents by affidavit. Mr. Annable withdrew his application during the hearing.

Key legal issues

The court addressed whether Devencore failed to comply with its obligation to disclose certain insurance policies as required by Rule 7-1(3), whether any failure should deprive Devencore of its entitlement to costs as the successful party, and whether Devencore was entitled to double costs under Rule 9-1.

Court’s analysis

The court found that Devencore should have disclosed an insurance policy that might have applied to a portion of the claim regarding wrongful termination, even though Devencore believed the policy was irrelevant due to exclusions. The court determined the failure to disclose was inadvertent and that there was no evidence of prejudice to Mr. Annable. The court found that Devencore’s offers to settle, made on May 25, 2020, and January 3, 2024, ought reasonably to have been accepted by Mr. Annable, who was less successful at trial than the terms of either offer. The court found no evidence that the non-disclosure affected Mr. Annable’s ability to assess the settlement offers or prejudiced him.

Outcome

Devencore Company Ltd. was successful in defending the claim. The court granted Devencore’s application for double costs for all steps taken in the proceeding after May 25, 2020. Devencore was also entitled to its costs for attendance and preparation in respect of the application for double costs and for preparation in respect of Mr. Annable’s application. No damages were awarded to Mr. Annable. The specific dollar amount of costs was not stated in the decision and would be determined according to the usual tariff.