Brian Monteiro

This is a costs decision following a personal injury trial where the jury found the Abitong defendants 5% liable and awarded general damages of $10,000 to the main plaintiff.

After applying the statutory deductible, the plaintiffs received no recovery.

The Abitong defendants sought costs, having made an offer to settle by dismissal without costs.

The court awarded the Abitong defendants $175,000 in all-inclusive costs on a partial indemnity basis.

The court considered factors under Rule 57, including the result achieved, complexity, and proportionality.

It addressed the plaintiffs' objections regarding trial length due to defence counsel's conduct, excessive time claims, high disbursements, and the use of in-house counsel, affirming that costs for salaried counsel should be assessed as if independent outside counsel were retained.

During a trial, the plaintiffs sought a mid-trial ruling to prevent the defendants from asserting the defence of inevitable or unavoidable accident, arguing it was not specifically pleaded as required by Rule 25.07(4) of the Rules of Civil Procedure.

The court ruled that a general denial of negligence in the statement of defence was sufficient to allow the defendants to raise the unavoidable accident defence, as there was no material difference in the legal test or onus, and the pleadings provided adequate notice to the plaintiffs.

Following a trial under the Simplified Rule procedure where liability was determined in favour of the defendant, the defendant sought costs.

The defendant had made offers to settle for $600 and $1,000, which the self-represented plaintiff rejected.

The defendant claimed partial indemnity costs of $51,702.25 or substantial indemnity costs of approximately $63,000.

Applying the principle of proportionality, the court fixed the defendant's costs at $25,000 inclusive of disbursements and taxes.

Andrew Enofe sued Capreit Limited Partnership for monetary compensation due to alleged damage or disappearance of his property stored at an apartment building managed by Capreit.

Enofe claimed water damage, vandalism, or theft of his possessions, and sought damages for breach of contract and emotional distress.

Capreit argued it was a gratuitous bailee, only liable for gross negligence, and that Enofe failed to prove the property's existence, damage, or value.

The court found Capreit was a gratuitous bailee and was not grossly negligent.

The court also found Enofe's claims for property damage and emotional distress unsubstantiated.

The action was dismissed.