Michael Rubin

The plaintiff's personal injury action was subject to a status hearing after a notice was issued by the court for delay.

The defendants sought to have the action dismissed.

The court applied the test from Khan v. Sun Life Assurance, finding that while the plaintiff's delay was not ideal, it was partially explained by her residence in Israel and a change in counsel.

The court also found no non-compensable prejudice to the defendants, as the delay was not unduly excessive and relevant evidence had been preserved.

The action was allowed to continue subject to a strict timetable, with no order as to costs.

Following a jury verdict finding that a motor vehicle accident did not cause injury to the plaintiff, and dismissal of the action on the statutory threshold for non‑pecuniary damages, the court determined the appropriate costs award.

The defendants sought substantial indemnity costs based on alleged misconduct and a withdrawn Rule 49 offer to settle.

The court held that substantial indemnity costs were not justified because the plaintiffs’ conduct was not reprehensible and the defendants’ offer had been withdrawn prior to trial, removing automatic Rule 49 consequences.

However, the defendants were the successful parties and were entitled to partial indemnity costs throughout, with the court fixing a lump sum award after considering proportionality, trial complexity, and counsel conduct that lengthened the proceeding.