L. Ferro

Following dismissal of a negligence action against an insurance broker relating to failure to advise about optional income replacement benefits under the Statutory Accident Benefits Schedule, the defendants sought costs.

The court considered factors under s. 131(1) of the Courts of Justice Act and rule 57.01 of the Rules of Civil Procedure.

The plaintiff argued the case raised novel issues and that access to justice considerations should reduce the award, but the court rejected those submissions, finding the issues were not novel and that adverse costs are a normal consequence of unsuccessful litigation.

Applying rule 49 settlement principles, the court awarded partial indemnity costs up to November 18, 2010 and substantial indemnity costs thereafter, subject to a reduction in claimed trial preparation hours.

Following the dismissal of a negligence claim on a summary judgment motion, the court determined the appropriate costs award.

The defendant sought substantial indemnity costs relying on the former Rule 20.06 and Rule 49 settlement offers, while the plaintiff argued for no costs on the basis that the litigation raised a novel issue of public importance and involved unequal resources.

The court held that substantial indemnity costs were not justified because the plaintiff did not act unreasonably in bringing the motion and the settlement offers did not trigger Rule 49.10 consequences.

Although the defendant was the successful party, the court reduced the partial indemnity costs due to divided success where the plaintiff established duty and breach but failed to prove damages.

Costs were awarded to the defendant in a reduced amount.

The plaintiff brought a motion for summary judgment alleging negligence by an insurance broker for failing to properly offer optional income replacement benefits under an automobile insurance policy.

The court held that insurance providers owe a duty of care to customers when providing information about available coverage and found that the insurer breached the standard of care by failing to meaningfully explain optional benefits as required under the Statutory Accident Benefits Schedule.

However, the plaintiff failed to establish causation because the evidence did not show on a balance of probabilities that optional benefits would have been purchased if properly offered.

An adverse inference was drawn from the absence of evidence from the spouse who had primary dealings with the insurer.

As a result, the negligence claim failed.