Ian D. Kirby

Following the dismissal of a motion seeking leave to appeal an earlier order to the Divisional Court, the successful defendant sought costs.

The defendant claimed $4,470.10 on a partial indemnity basis, including fees and disbursements, while the plaintiff proposed an award of $2,000.

Applying the relevant factors under the Rules governing costs, the court found that the docketed hours appeared somewhat excessive and noted that certain claimed disbursements, including a car rental, were inappropriate.

The court exercised its discretion to fix costs in a reduced lump sum amount.

The applicant insurer sought judicial review of a FSCO Director's Delegate's decision.

The respondent was injured in an accident and subsequently filed an amended tax return reporting previously unreported income.

The Director's Delegate held that under s. 64.1(2) of the Statutory Accident Benefits Schedule, the respondent was entitled to have his income replacement benefits adjusted to reflect the higher income reported in the amended return.

The Divisional Court dismissed the application, finding the standard of review was reasonableness and that the Director's Delegate's interpretation of s. 64.1(2) was both reasonable and correct.

Manitoba Public Insurance (MPI) brought a motion for directions regarding an unpaid costs award of $12,000 from a priority dispute over accident benefits.

MPI was successful in the underlying arbitration and application, but took no part in the subsequent appeal between Allstate and the Motor Vehicle Accident Claims Fund.

The Court of Appeal ordered Allstate, as the unsuccessful party on the appeal, to pay MPI's $12,000 costs from the lower proceedings, plus $1,000 for the costs of the motion.

The appellant insurer appealed a trial decision awarding the respondent insured a substantial loss of earning capacity benefit (LECB) and interest on overdue payments.

The respondent, a university student who suffered cognitive deficits and depression following a motor vehicle accident, cross-appealed the trial judge's decision to lock in her pre-accident earning capacity.

The Court of Appeal dismissed the insurer's appeal, finding the trial judge correctly concluded the respondent's residual earning capacity was zero due to her psychological makeup, and correctly awarded interest from the date benefits were overdue.

The Court allowed the cross-appeal, holding that the pre-accident earning capacity must be adjusted as the insured ages pursuant to the statutory formula.

The appeal concerned whether weekly no-fault benefits paid under s. 13 of the pre-1994 Statutory Accident Benefits Schedule were deductible from an award of general damages in a motor vehicle personal injury action.

Applying the no-double-recovery approach from prior appellate authority, the court held that deductibility depends on whether the statutory benefit is akin to the same head of loss as the damages award.

The court concluded that s. 13 benefits are more akin to damages for loss of income than to general damages because they are weekly, age-linked, coordinated with income loss benefits, and directed at those prevented from seeking employment or education.

The appeal was allowed, the Divisional Court order was quashed, and the motions judge's order was restored.