Alexa Duggan

Following a successful 12-day jury trial where the plaintiffs were awarded $2,170,188 in damages (net $1,749,690.54), the court addressed the parties' dispute over costs.

The plaintiffs sought partial indemnity costs until their offer to settle and substantial indemnity thereafter, arguing they "beat" their offer.

The defendants sought reductions for costs related to statutory accident benefits (SABS) litigation, an interlocutory motion to add a party, and a Workplace Safety and Insurance Appeals Tribunal (WSIAT) hearing, as well as certain disbursements.

The court, applying Rule 57.01 factors, fixed the plaintiffs' costs at $478,750.00 (inclusive of HST and disbursements) and allowed the defendants a $5,000 deduction for the collateral benefits motion, resulting in a net award of $473,750.00 to the plaintiffs.

The decision disallowed costs for the WSIAT hearing, the interlocutory motion, and certain disbursements (meals, courier, copying, adverse costs insurance), while partially allowing SABS-related costs due to the benefit derived by the defendants.

This addendum clarifies and corrects the court's previous Reasons released on December 5, 2023, regarding the application of a statutory deductible to a Family Law Act award.

Following a jury trial, the court had initially misunderstood the parties' agreement, stating no deductible applied to Sandra McCurdy's $65,000 award.

This addendum rectifies that, confirming the award is subject to the statutory deductible of $22,183.63, resulting in a revised total net judgment for the plaintiffs.

This endorsement resolves two costs issues.

First, the plaintiffs' successful motion to amend their claim to $200,000, bringing it within the simplified procedure due to the death of a plaintiff.

The court awarded the plaintiffs $5,000 in partial indemnity costs for this motion, finding it was not an "indulgence" and that the defendants' opposition was unsuccessful.

Second, the defendants' claim for costs under Rule 76.13, which applies when a claim is amended to simplified procedure.

The court found the plaintiffs' delay in bringing the amendment relevant to these costs.

While acknowledging some costs were unnecessarily incurred by the defendants in preparing for an ordinary trial, the court significantly reduced the defendants' claimed amount for witness preparation, deeming it excessive and disproportionate.

Ultimately, the court awarded the defendants $8,000 under Rule 76.13, resulting in a net award of $3,000 to the defendants, payable within 90 days.

The plaintiffs brought a motion to amend their Statement of Claim to reduce the damages claimed from $950,000 to $200,000 and to continue the action under the simplified procedure, following the death of the primary plaintiff which eliminated the claim for future care costs.

Because the trial record had already been filed, leave was required under Rule 48.04(1).

The court granted leave, finding the plaintiff's death constituted a substantial and unexpected change of circumstances.

The court also granted the amendment under Rule 26.01, finding it was in the interests of justice to proceed with a 5-day simplified trial and that the defendants would suffer no prejudice that could not be compensated by costs or an adjournment.