Jeffrey Crannie

This is an appeal from a costs ruling in a negligence action.

The plaintiff, Anna Przyk, sued Hamilton Retirement Group Ltd. (Rushdale) after a slip and fall.

A jury found Rushdale not liable, and the action was dismissed.

Rushdale, as the successful party, sought partial indemnity costs, which the trial judge denied.

The trial judge cited three reasons: the need for negligence law to adapt to elder care, a "David and Goliath" situation due to Rushdale's insurer (Aviva), and Aviva's "hardball" settlement approach.

The Court of Appeal found that the trial judge erred in principle by relying on the insurer's resources and settlement posture as reasons to deny costs to a successful party, absent litigation misconduct.

However, the Court upheld the no-costs award on the independent ground that the case raised important and novel issues concerning elder care, which is a valid consideration for costs discretion.

The appeal was dismissed, with no costs awarded for the appeal.

The plaintiff, an elderly resident, sued the defendant retirement home after a slip and fall on an uneven sidewalk.

Following a jury trial, the defendant was found not liable.

The defendant, represented by in-house counsel for its insurer, sought costs.

The court declined to award costs to the successful defendant, noting the insurer's "hardball" tactics, refusal to negotiate, and the broader social interest of access to justice for modest litigants facing large insurers.

Following a discovery motion concerning undertakings, refusals, and disclosure obligations, the parties were unable to agree on costs.

The court found that the defendant had been justified in bringing the motion and had been largely successful on issues including production of photographs, access to Facebook materials, and a bone scan request.

Applying Rule 57.01(1) of the Rules of Civil Procedure and the fairness principles governing cost awards, the court considered the hours claimed and the absence of a costs outline from the plaintiff.

The court held the defendant was entitled to costs on a partial indemnity basis.

Costs were fixed at $3,272.92 inclusive of fees, disbursements, and HST.