Lou Ferro

The Court of Appeal for Ontario issued a costs endorsement following the appeals in Westerhof v. Gee Estate and McCallum v. Baker.

The court ordered that the costs of the appeal in McCallum v. Baker be awarded to the respondent, fixed in the amount of $60,000 inclusive of disbursements and applicable taxes.

Two personal injury appeals were heard together to determine the scope of Rule 53.03 of the Rules of Civil Procedure regarding expert witnesses.

The Court of Appeal held that Rule 53.03 does not apply to 'participant experts' (such as treating physicians) or 'non-party experts' who form opinions based on their observation of or participation in the events at issue, rather than being engaged by a party for the litigation.

In Westerhof, the trial judge's erroneous exclusion of such evidence warranted a new trial.

In McCallum, the trial judge correctly admitted the treating practitioners' opinion evidence.

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.

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 a jury trial in a personal injury action, the jury awarded the plaintiff damages for loss of competitive advantage but no non‑pecuniary damages or past income loss.

The court subsequently determined that the plaintiff failed to meet the statutory threshold and dismissed the action.

The defendant sought substantial indemnity costs relying on a pre‑trial offer to settle and alleged misconduct in pursuing the claim.

The court held that elevated costs require a clear finding of reprehensible or egregious conduct, which had not been established.

Costs were therefore fixed on a partial indemnity basis.

The plaintiff was involved in a rear-end motor vehicle accident and claimed damages for chronic pain and psychological impairments.

Following a nine-day jury trial, the defendant brought a threshold motion arguing the plaintiff's injuries did not meet the statutory requirement of a permanent serious impairment under the Insurance Act.

The court reviewed extensive medical evidence and found the plaintiff lacked credibility, having concealed her pre-accident medical history and exaggerated her symptoms.

The court concluded the plaintiff failed to establish on a balance of probabilities that her injuries were permanent, noting she had voluntarily stopped treatment and had significant pre-existing conditions.

The defendant's motion was granted and the plaintiff's action was dismissed.

Following dismissal of the plaintiff’s $4.5 million action alleging that corporate sponsors of a soccer association owed a duty to ensure adequate insurance coverage for players, the court determined the issue of costs.

The successful defendants sought substantial partial indemnity costs following a Rule 21 motion that terminated the claim at an early stage.

The court held that while the defendants were entitled to significant costs, the hours claimed by counsel were excessive and involved duplication of work.

Considering the factors under Rule 57.01 of the Rules of Civil Procedure, the court reduced the requested amounts and fixed reasonable costs payable to the successful defendants.

Following the dismissal of an action against an insurer on summary judgment, the court determined the appropriate costs award.

The plaintiffs had advanced a novel negligence claim alleging the insurer owed a duty of care to ensure adequate insurance coverage for a sports association member who became quadriplegic while playing soccer.

After the action against the insurer was dismissed, the insurer sought costs.

Applying the factors in rule 57.01 of the Rules of Civil Procedure, the court reduced the amounts claimed due to duplication of effort and excessive time entries but held that the successful defendant was entitled to partial indemnity costs.

Following a successful motion for security for costs, the defendant sought an award of costs for the motion on a partial indemnity basis.

The plaintiff did not dispute entitlement but argued the defendant achieved only partial success, claimed excessive costs, and requested that any award be in the cause rather than payable immediately.

The court held the moving party was substantially successful and rejected arguments that the award should be reduced for limited success.

While the amount claimed exceeded what would normally be expected for such a motion, the court accepted that additional work caused by late filings, expedited cross-examinations, and the complexity of the underlying action justified a higher award, subject to reduction for duplication of effort.

Costs were fixed and ordered payable within 30 days pursuant to the Rules of Civil Procedure.

The insurer brought a motion for summary judgment seeking dismissal of claims alleging that it negligently provided inadequate insurance coverage for members of a sports association.

The plaintiffs argued that the insurer owed a duty to advise that the policy limits were insufficient and should have refused to offer the policy.

The court held that where an experienced broker represents the insured, the insurer owes no direct advisory duty to the insured beyond issuing the policy requested through the broker.

As the evidentiary record showed no direct advisory relationship and the plaintiffs failed to provide evidence supporting the alleged duty, there was no genuine issue requiring a trial.

The defendants, corporate sponsors of a soccer organization, brought a motion under rules 21.01(1)(b) and 25.11 of the Rules of Civil Procedure to strike a negligence claim arising from a catastrophic soccer injury.

The plaintiff alleged the sponsors had a duty of care to ensure that the organization maintained adequate insurance coverage for players.

The court held that mere financial sponsorship and advertising relationships do not create a proximate relationship giving rise to a duty of care to participants.

The pleadings failed to establish reliance, proximity, or control over the event or insurance arrangements.

The statement of claim disclosed no reasonable cause of action and was struck.

The defendant insurer brought a motion for security for costs against a corporate plaintiff in bankruptcy alleging a conspiracy by insurers to destroy its accident-benefits clinic business.

The court considered the framework under Rule 56.01 of the Rules of Civil Procedure, including whether the plaintiff established impecuniosity, whether the claim had a good chance of success, and whether delay justified refusing the order.

The court found the plaintiff failed to demonstrate genuine efforts to obtain funding from creditors or shareholders and therefore did not establish impecuniosity.

The plaintiff also failed to demonstrate a good chance of success on the evidence presented, and the defendant had not delayed unreasonably in bringing the motion.

Security for costs was ordered in staged amounts.

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 defendants sought costs on a substantial indemnity basis after successfully achieving a dismissal of the action at the opening of trial.

The defendants had made three offers to settle, the last being a valid, unexpired Rule 49 offer.

The plaintiff did not file any responding costs submissions.

The court awarded the defendants substantial indemnity costs from the date of their final offer, and partial indemnity costs for the steps taken prior to that offer, resulting in a total costs award of $39,298.11 plus GST.

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.

The appellants appealed an order regarding the admissibility of proposed expert evidence.

The Court of Appeal dismissed the appeal, holding that the trial judge, rather than a motion judge, should determine the admissibility of expert evidence to avoid a multiplicity of proceedings, ensure full context, and prevent tactical preliminary steps.

The court noted that even if a motion judge has such jurisdiction, it should only be exercised in the rarest of cases.

The appellant appealed a motion judge's decision dismissing a claim of civil conspiracy against a respondent solicitor.

The Court of Appeal agreed with the motion judge that the pleaded facts provided no foundation for the claim.

The appeal was dismissed with costs fixed at $5,000.

The applicant insurer sought leave to appeal a motion judge's decision refusing to strike portions of the respondent's statement of claim.

The respondent, a child passenger in a vehicle driven by her mother, sued the mother's statutory accident benefits insurer for damages arising from the insurer's denial of the mother's claim, alleging breach of contract, bad faith, and negligence resulting in the loss of her mother's care and guidance.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the motion judge's conclusions that the respondent could claim mental distress damages for breach of a peace of mind contract, that the insurer owed the respondent a duty of good faith regarding her mother's claim, and that the alleged harm was foreseeable in tort.

The appellants appealed an order dismissing their motion to exclude the medical report and evidence of a defence expert, Dr. Bednar, prior to trial.

The motions judge had declined to rule on the admissibility, holding that such a determination should be reserved for the trial judge.

The Divisional Court dismissed the appeal, with the majority finding that it would be extremely rare for a motions judge to be in an equal or better position than the trial judge to rule on the exclusion of expert evidence.

Matlow J. dissented, arguing the motions judge had jurisdiction under Rule 37.02(1) and should have considered the merits.