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Victoria Edwards, a personal injury lawyer with Siskinds LLP, was recently published in Law360.

This article was originally published by Law360™ Canada, part of LexisNexis Canada Inc.

Read the full article below.

Victoria Edwards – Law360™ Canada – Posted: May 29, 2024

In Lawless v. Joanovits, 2024 ONSC 1561, a costs endorsement following a five-day jury trial, Justice Mark Edwards encourages personal injury litigants to account for the risk of trial in their negotiations. He strongly encouraged all parties to take a more realistic position as it relates to liability and damages so as not to waste the court time with matters that ought to have been resolved.

A $0 offer to settle or an offer to settle that does not contemplate the risks of a jury’s apportionment of liability are not realistic.

The plaintiff won her five-day occupier’s liability trial. A jury awarded her a net judgement of $18,000. The court awarded costs to the plaintiff in the amount of $50,000 plus HST plus disbursements in the amount of $18,677.42. Below is a summary of the resulting costs decision.

The trial decision

The jury was asked to apportion liability between the plaintiff and defendant. It was also asked to assess the quantum of damages. The jury found that the plaintiff was 70 per cent responsible for her injuries, and the defendant was 30 per cent liable. The jury awarded the plaintiff $60,000 in general damages, which was reduced to $18,000 to account for the apportionment of liability.

Costs submissions

The defence argued that the plaintiff should not be awarded any costs because the judgment was less than the monetary limits of Simplified Procedure and small claims court.

Simplified Procedure is for relatively straightforward cases that are expected to last five days or fewer, with a $200,000 cap on damages. There is also a cap on costs and disbursements under the Simplified Procedure.

Small claims court is for even simpler matters that are heard before a deputy judge, with a $35,000 limit on damages. There is a smaller cap on costs and disbursements in small claims court.

The plaintiff sought partial indemnity costs of $114,000 plus costs and disbursements in the amount of $18,677.

The law

The basic principle applied in an assessment of costs is to ensure that costs are fair, reasonable, proportionate and reflect what the losing party could reasonably anticipate paying. The court is required to consider the factors set forth in r. 57.01 of the Rules of Civil Procedure.

The significant apportionment of liability against the plaintiff was particularly relevant in this case.

The decision

Justice Edwards noted that both parties took a hardline approach to liability. The defendant took a no-liability position, and the plaintiff did not account for any contributory negligence going into trial. Justice Edwards wrote that the case could and should have been resolved if both parties had reflected the risks of litigation in their negotiations.

Though the ultimate award did fall within the jurisdiction of the small claims court and/or Simplified Procedure, the defence took a position of no liability as well as an assessment of damages that was well below what the court would have ordered.

An award of costs that exceeds the amount of damages assessed by the jury might be seen by some as disproportionate. While an award of costs must be proportionate, it must also be seen to be reasonable and fair. It must also reflect an amount that the losing party might reasonably have anticipated paying in the event of non-success at trial.

In this case, the defence sought costs exceeding $40,000. Therefore, it would not have been difficult to anticipate that the plaintiff’s costs would have been higher. The plaintiff has the onus of proof and would likely incur greater costs than the defence.

Taking into account all these factors, Justice Edwards awarded the plaintiff costs in the amount of $50,000 plus HST and the requested disbursements.