The plaintiffs brought an action against their property insurer and contractors after their home was destroyed by fire, including a subrogated claim on behalf of the Ontario Health Insurance Plan.
The Ministry withdrew its claim during the trial and did not participate.
The jury dismissed the plaintiffs' claims and assessed damages at zero.
The successful defendants sought to have the Ministry held jointly and severally liable for their costs, relying on s. 39(6) of Regulation 552 under the Health Insurance Act.
The trial judge refused to award costs against the Ministry.
The Court of Appeal dismissed the defendants' appeal, holding that s. 39(6) does not apply where the Plan's claim has not been assessed, and the trial judge made no error in exercising her discretion under Rule 23.05.
