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CIVIL PROCEDURE - Costs - Complex, novel or test case - When not awarded

Thursday, June 17, 2021 @ 5:37 AM  


Lexis Advance® Quicklaw®
Appeal by the defendant from a costs award denying it partial indemnity costs. The plaintiff sued the defendant for damages to compensate for injuries arising from a slip and fall on a sidewalk located on the defendant’s care home premises. The parties agreed on the quantum of damages. A jury trial on the issue of liability resulted in dismissal of the plaintiff’s action. The defendant sought partial indemnity costs. The trial judge denied the request for three reasons. First, the judge noted that the action, which required expert evidence, illustrated a need to adapt negligence law to the growing area of elder care. Second, the judge found that a power imbalance arose from the defendant’s defence by a prominent insurance company. Third, the judge was critical of the fact that the insurer never offered the plaintiff a settlement beyond no-dismissal of her claim, reflecting a hardline approach that disadvantaged litigants of modest means, contrary to the insurer’s social responsibility. The defendant appealed.

HELD: Appeal dismissed. The fact that the defendant was defended by a large insurer was not a valid reason to deny costs. Neither the existence of insurance in favour of a successful party at trial, nor the fact that the successful party was better resourced, was a valid justification for denying costs where the resource advantage was not used to engage in abusive tactics or other misconduct. In addition, the refusal to offer a financial settlement was not a valid basis to deny costs where the refusal was proven reasonable by the verdict. The attitude of the insurer toward settlement in cases generally was not a relevant factor. However, although the trial judge’s costs ruling reflected errors in principle, the conclusion that the action raised important and novel issues was not tainted by those errors and was a sufficient independent basis to justify the result.

Przyk v. Hamilton Retirement Group Ltd. (c.o.b. Court at Rushdale), [2021] O.J. No. 2223, Ontario Court of Appeal, M.H. Tulloch, B. Zarnett and L. Sossin JJ.A., April 28, 2021. Digest No. TLD-June142021007