In Przyk v. Hamilton Retirement Group Ltd, an elderly resident at the defendant retirement home experienced a modest slip and fall on a sidewalk between one exit of the home and the main entrance. It was found that the Plaintiff was open to settlement, but the insurer for the retirement home was not and remained of this position up until trial. Just prior to the trial, the parties agreed that damages would be fixed at $75,000.00 and therefore, the trial was to focus on liability.
Justice Whitten, in his decision about costs stated:
"There is always a risk in litigation that no matter how sympathetic your plight is or your circumstances that a jury will not find for the plaintiff. It is a risk that is oft mentioned by those who seek to encourage parties to talk "resolution". That being said, courageous advocates embrace the risks and push on. In this case the jury found there was no negligence on the part of the home and hence the plaintiff would not be entitled to the agreed upon damages."
Nevertheless, despite the success of the Defendant, Whitten J considered whether the Defendant should receive costs and the quantum.
Section 131(1) of the Courts of Justice Act provides that the costs of and incidental to a proceeding are in the discretion of the court, and the court can decide by whom and to what extent the costs should be paid. As with any discretion, it should be exercised fairly and reasonably.
Whitten J highlights the Defendant's insurer's "the threshold of defensible program" and states that this approach effectively shuts out modest claims.
Whitten J concludes:
"Being a large market shareholder is not without social responsibility, size should not be wielded to oppress deserving litigants as that would encroach upon the broader social interest of access to justice.
The insurer.. with its approach is at risk of allegations of playing hardball. In some circumstances that approach may result in no costs. In a way, that is a cost of doing business in such a fashion.
I am of the view that there should be no order as to costs. In other words, these parties should bear their own costs. Given this finding, it is unnecessary to deal with the specific complaints as to the quantum of the cost."
The insurer for the Defendant has filed a Notice of Appeal. As defence counsel, I would also. The Judge is using this case as an example of the insurer's corporate practice and not looking at the merits of this case. Clearly, the Defendant had a right to take a no liability position, based on the evidence and ultimately, the decision. Perhaps the position was also as a result of the insurer's litigation practice, but given that the Defendant was successful, should the Defendant not be entitled to costs?
There is no discussion about whether the Plaintiff had adverse cost insurance and how that may have driven the Plaintiff to proceed to trial. Nevertheless, I am curious as to the Court of Appeal's viewpoint on this controversial costs decision.
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