While costs must be proportionate, it must also be reasonable and fair: court
In a recent personal injury case, the Ontario Superior Court of Justice rejected the defendant’s no-liability stand and upheld an award of costs exceeding the damages.
After an extensive five-day jury trial concerning the liability of the defendant under the Occupier’s Liability Act and the quantum of general damages, the Ontario Superior Court of Justice had to determine pre-judgment interest and costs, as the parties could not agree.
Despite encouragement to resolve these issues out of court, the plaintiff sought $11,502.00 in pre-judgment interest, approximately $114,000 in partial indemnity costs, and $18,677 in disbursements. The defence contested, suggesting no costs should be awarded due to the plaintiff’s recovery aligning with the jurisdictional limits of the Small Claims Court or the Simplified Rules and sought costs for certain abandoned claims.
The questions that the jury had to answer were whether or not the plaintiff had proven on a balance of probabilities that the defendant was liable for the plaintiff’s injuries and if the plaintiff succeeded in establishing such liability, whether or not there was any contributory negligence on the part of the plaintiff.
Ultimately, the jury found the defendant liable, assigning a 70 percent liability to the plaintiff and 30 percent to the defendant. The Ontario Superior Court of Justice emphasized the principle of awarding fair and reasonable costs, reflective of what the losing party could anticipate. The defence’s strategy of denying liability was highlighted as inconsistent with the principles of the civil justice system, leading to high costs for the plaintiff, which the court deemed recoverable.
Despite the defence’s no-liability stance and a damages assessment significantly lower than the jury’s award, the court found that an award of costs exceeding the damages was justified. The court noted that some might see an award of costs that exceeds the amount of damages assessed by the jury as disproportionate. However, the court emphasized that while an award of costs must be proportionate, it must also be considered reasonable and fair. It must also reflect an amount the losing party might reasonably have anticipated paying in the event of non-success at trial.
The court also addressed the issue of pre-judgment interest, siding with the defence’s calculation, which included the general damages and additional pre-judgment interest amounts, making a negligible difference from the plaintiff’s request. Ultimately, the court denied the defence’s request for costs related to abandoned claims, emphasizing the importance of focusing claims for trial.
