Lisa K. Van Arnhem

Following trial, the court determined entitlement and quantum of costs after the defendant succeeded and the plaintiff failed to respond to the defendant’s bill of costs.

The court considered the presumptive consequences under Rule 49.10 where a party obtains a result as good as or better than a settlement offer, as well as the discretionary factors under Rule 57.01.

While acknowledging the plaintiff’s sympathetic financial circumstances, the court held that sympathy cannot displace the usual costs consequences where the plaintiff was represented by experienced counsel and proceeded despite litigation risks.

The court scrutinized the defendant’s bill of costs and reduced several claimed amounts due to lack of detail and excessive disbursements, including photocopying and expert witness preparation fees.

Costs were fixed with partial indemnity before the offer and substantial indemnity thereafter, subject to reductions.

The plaintiff was injured in a motor vehicle accident and sought statutory accident benefits, including caregiver and non-earner benefits, from her insurer.

The insurer terminated caregiver benefits after 104 weeks, prompting the plaintiff to sue for the benefits, as well as damages for bad faith and mental distress.

The Superior Court of Justice dismissed the action, finding that the claim was statute-barred because it was commenced more than two years after the insurer's clear refusal to pay.

Furthermore, the court held that even if the claim were not statute-barred, the plaintiff failed to prove she suffered a complete inability to carry on a normal life, largely due to pre-existing conditions and a lack of objective medical evidence.

The claims for bad faith and mental distress were also dismissed as the insurer's conduct was reasonable and there was insufficient evidence of compensable distress.