Award of Costs to Plaintiff after Successful Trial
In Ross v. Bacchus, 2013 ONSC 77734, the plaintiff Ross was injured in a motor vehicle accident. After a six day trial, he was awarded $248,000 in general and pecuniary damages. The plaintiff sought $140,000 in costs and a further $60,000 for the defendant’s failure to comply with its obligations to mediate the case in accordance with Section 258.5 of the Insurance Act.
Justice Ramsay noted in his decision that although the defendant did agree to a brief mediation at limited costs it (Certas) had advised the plaintiff it was not interested in settling this case. Justice Ramsay inferred that the insurer’s conduct could be interpreted as intimidating the plaintiff and other plaintiffs who had meritorious cases. Offers were exchanged between the parties. Justice Ramsey noted that it took a "6 day trial with all its attendant risk for the sake of $50,000.00." This was a an expense and risk that the defendant could afford but the plaintiff could not. He found that the defendant did not attempt to settle expeditiously as required by the Insurance Act and the mediation was described "as a sham". By refusing to mediate the trial judge augmented the cost award by $60,000 plus HST.
The decision reads in part "The plaintiff should have partial indemnity to October 28, 2013 and substantial indemnity thereafter. The amount proposed by the plaintiff is reasonable and would have been contemplated by the parties. I would award $140,000 in costs, plus $17,000 in disbursements, and HST on those amounts. By reason of the refusal to mediate I augment the award by $60,000 plus HST. The total cost award, then, is $217,000 plus HST. Unopposed I award $39,609.60 in pre-judgment interest."
This case is another example of how courts will consider the reaosnableness of the positions taken by the parties when assessing costs.
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