Joe Fidilio

Following an appeal, the appellants sought costs of the motion below on a substantial indemnity basis.

The Court of Appeal rejected the claim for substantial indemnity costs, noting the respondents' conduct was not unreasonable and the novel aspect of the claim.

However, as the appellants were partially successful in maintaining their right of action, the court awarded them partial indemnity costs of the motion below fixed at $10,000.

The appellants were injured in a motor vehicle accident and sought statutory accident benefits.

The insurer required them to undergo a Designated Assessment Centre (DAC) assessment, which concluded the requested treatments were not reasonable or necessary.

The appellants sued the DAC and its assessors for negligence and bad faith.

The motion judge struck the claims, finding no duty of care and applying witness immunity.

The Court of Appeal allowed the appeal in part, holding that while policy considerations preclude a claim for simple negligence against DAC assessors, it is not plain and obvious that claims based on bad faith or breach of a duty of neutrality should be struck, nor does witness immunity necessarily apply to their role as decision-makers.