Bruce Mitchell

Following a prior decision in the underlying proceeding, the court addressed costs.

The court accepted the written submissions of the applicant and one respondent regarding the appropriate allocation of costs.

Applying the criteria under the Rules governing costs assessments and considering the procedural history and outcome of the litigation, the court ordered that costs be payable by the other respondent.

Costs were awarded to both the applicant and the co-respondent.

Following a jury trial in a motor vehicle personal injury action, the plaintiffs moved for an order staying the determination of costs pending satisfaction of the judgment or resolution of a separate insurance coverage dispute involving the liable defendant and his insurer.

The plaintiffs argued that costs should be deferred because the verdict was under appeal and because the defendant’s ability to pay costs was uncertain pending determination of coverage, particularly given their intention to seek a Sanderson costs order.

The court held that the existence of an appeal or unresolved insurance coverage litigation does not justify departing from the usual practice of fixing costs after trial.

The ability to pay costs is only one factor in determining whether a Sanderson order is appropriate and does not require postponement of the costs determination.

The motion for a stay of the costs determination was dismissed.