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The Court of Appeal held that costs following a settlement should be apportioned based on settlement contributions rather than a reconstructed assessment of liability.
This appeal concerns the correct analytical approach to fixing costs when an action is settled before adjudication on the merits.
Two infant plaintiffs were catastrophically injured when struck by a vehicle in 2004.
After more than ten years of litigation, the parties settled in June 2017, three months before trial.
The settlement provided for $1 million from each of the Potrebics and Pipolos, with costs to be determined by the court.
The motion judge apportioned costs based on his assessment of the parties' respective liability for damages, finding the Potrebics solely responsible.
The appellants challenged this apportionment and the quantum of costs awarded.
Successful defendant awarded $40,000 in costs after plaintiff's motor vehicle accident claim dismissed on threshold.
Following a jury trial for a motor vehicle accident where the plaintiff's action was dismissed for failing to meet the statutory threshold, the successful defendant sought over $104,000 in costs plus disbursements.
The plaintiff argued no costs should be awarded due to her impecuniosity and the defendant insurer's alleged failure to attempt settlement under the Insurance Act.
The court found the insurer did not breach its duty to settle by taking a hard-line defensible position.
However, considering the plaintiff's limited financial means and the modest complexity of the case, the court reduced the defendant's costs and fixed them at $40,000 all-inclusive.
