Helen Pelton

Following dismissal of an appeal from an arbitration award in a personal injury action, the successful plaintiffs sought costs on a full indemnity basis, alleging egregious conduct by the municipal defendant, including rejection of a mediation settlement and pursuit of an appeal with little prospect of success.

The defendant argued that costs should be awarded on the ordinary partial indemnity scale and disputed the quantum claimed.

The court held that while the defendant’s conduct and delay could be considered when determining the amount of costs, it did not justify full or substantial indemnity costs.

The court emphasized that costs must reflect a fair and reasonable contribution by the unsuccessful party rather than the exact amount spent by the successful litigant.

Certain claimed amounts relating to earlier Court of Appeal motions were excluded.

The defendant municipality appealed an arbitration award arising from a personal injury claim after the injured party was hurt while tobogganing on municipal reservoir property.

The arbitrator found the municipality fully liable under s. 3 of the Occupiers’ Liability Act, rejecting arguments that the plaintiffs willingly assumed the risk under s. 4, that the property constituted a utility right‑of‑way, or that the plaintiffs were contributorily negligent.

The municipality argued the arbitrator committed errors of law in applying the duty of care, in rejecting contributory negligence, and in awarding damages under the Family Law Act.

The court held that the challenged findings involved questions of fact or mixed fact and law, which were not reviewable on a limited statutory appeal restricted to questions of law.

Even if reviewable, the arbitrator’s conclusions were reasonable and consistent with applicable legal principles.