C. Robertshaw

Following a trial in which the plaintiffs’ occupiers’ liability claim arising from a fall in a municipal park was dismissed, the defendant municipality sought costs.

The court held that as the successful party the defendant was entitled to its costs of the proceeding on a partial indemnity basis.

A defence offer to settle consisting of dismissal without costs was found largely irrelevant to the costs determination.

After reviewing the costs outline, the court reduced the defendant’s requested amount as excessive and disallowed certain charges, including those related to other dismissed Family Law Act claims.

The court fixed costs for trial and pre‑trial work and awarded a total amount including HST and disbursements.

The plaintiff sued the City of Hamilton for injuries sustained after falling into a ravine in a wooded area of a city park at night.

The court held that the lower standard of care under s. 4(1) of the Occupiers' Liability Act applied because the plaintiff was engaged in a recreational activity and had wandered off a marked recreational trail.

The court dismissed the action, finding that the City did not act with reckless disregard for the plaintiff's safety, as it had no prior knowledge of the danger and the natural hazards were obvious.

Damages were assessed provisionally.