2 total
Plaintiffs awarded partial indemnity costs despite recovering under $100,000; costs insurance premium allowed as disbursement.
Following a jury trial where the plaintiffs recovered $68,250 in damages, the court determined the appropriate quantum of costs.
The defendant argued that no costs should be awarded under Rule 76.13 because the recovery was under $100,000.
The court rejected this argument, finding it was reasonable to use the ordinary procedure given the substantial loss of income claim advanced at trial.
The court reduced the plaintiffs' claimed costs due to the failure of the loss of income claim, excessive rates, and duplication of work.
The court also allowed the plaintiffs' disbursement for costs insurance, noting it promotes access to justice.
The plaintiffs were awarded $58,000 in fees and $28,000 in disbursements, plus HST.
Novel ski waiver issue was unsuitable for determination on a Rule 21 motion.
The plaintiff moved under Rule 21 to strike portions of the statement of defence relying on a ski resort waiver and release, arguing that s. 9(1) of the Consumer Protection Act, 2002 prevented the supplier from contracting out of liability for negligent provision of services.
The court held that the issue was novel in Ontario in the context of ski resort waivers and should not be determined on a Rule 21 motion without a full factual record and possible expert evidence.
Because the threshold issue failed, the statutory interpretation question was not decided.
The motion was dismissed with agreed costs to the defendants.
