D. Robert Findlay

The parties settled a personal injury action arising from a motor vehicle accident six days before trial for $775,000 plus costs.

The plaintiff sought partial and substantial indemnity costs totalling approximately $246,000 in fees and $157,500 in disbursements.

The defendant argued the amounts were excessive.

The court reviewed the claimed fees and disbursements, noting some duplication and excessive preparation time.

Applying the principle of reasonableness, the court fixed the plaintiff's fees at $170,000 plus HST and disbursements at $98,800 inclusive of HST.

Following a jury trial in a personal injury action, the court addressed two outstanding costs issues: whether the plaintiff’s after‑the‑event (ATE) insurance premium was a compensable disbursement and how prejudgment interest should be calculated following amendments to the Insurance Act effective January 1, 2015.

The court held that ATE insurance premiums are discretionary litigation expenses and are not recoverable as taxable disbursements in Ontario, noting the absence of legislative reform comparable to the United Kingdom regime permitting recovery of such premiums.

On the issue of prejudgment interest, the court held that the amendment to s. 258.3(8.1) of the Insurance Act changing the rate of prejudgment interest does not apply retroactively because prejudgment interest is substantive in nature.

The plaintiff was therefore entitled to prejudgment interest on general damages at the pre‑January 2015 rate of five percent per annum.

Following a jury trial in a negligence action arising from a rear-end collision with a motorcycle, the plaintiff obtained a damages award of $248,000.

The plaintiff subsequently sought costs including augmented costs under the Insurance Act due to the defendant insurer’s failure to make reasonable settlement efforts and to meaningfully participate in mediation.

The court found the insurer’s participation in mediation was a sham and concluded that it failed to comply with its statutory obligations under ss. 258.5 and 258.6 of the Insurance Act.

As a result, the court awarded partial indemnity costs up to the plaintiff’s settlement offer date and substantial indemnity thereafter, and augmented the costs due to the refusal to mediate.

The total costs award was $217,000 plus HST, in addition to pre-judgment interest.