COURT FILE NO.: 206/06

DATE: 20060614

SUPERIOR COURT OF JUSTICE - ONTARIO

DIVISIONAL COURT

RE: EURVAL DINHAM v. ALEXANDRE A. BREJKALN

BEFORE: Justice Epstein

COUNSEL: Tony Afecto, for the Plaintiff

Donald G. Cormack, for the Defendant

HEARD: June 9, 2006 at Toronto

E N D O R S E M E N T

[1] The defendant, Mr. Brejkaln, is seeking leave to appeal to the Divisional Court, the cost order of Cumming J. dated April 21, 2006 in which the learned trial judge decided not to award costs against the plaintiff, Mr. Dinham, following a five-day jury trial.

[2] The basis of the defendant’s position is that since he successfully defended the action he is entitled to his costs. He submits that this is not one of those exceptional cases where costs should not follow the event.

Background

[3] The action arises out of a motor vehicle accident. At trial Mr. Brejkaln defended both liability and damages.

[4] The trial focused on the plaintiff’s claims for damages connected with chronic headache due to whiplash suffered as a result of the accident. The jury found Mr. Brejkaln liable for the accident. However, it only awarded $3,000 in damages.

[5] The defendant brought a threshold motion at the conclusion of the trial. Cumming J. found that the plaintiff had not proven that there was a permanent impairment of an important physical function as a result of the accident and furthermore that the plaintiff had not proven that his headaches were actually caused by the accident. As a result of these conclusions, the plaintiff was not entitled to any recovery.

[6] The trial judge noted that given the $15,000 statutory deductible that would apply, there would not have been any actual recovery by the plaintiff in all events in light of the jury’s award of only $3,000.

[7] The defendant sought costs in respect of the action, including the trial.

[8] In his costs endorsement Cumming J. noted that the defendant claimed $54,107.04 on a substantial indemnity basis and $36,824.84 on a partial indemnity basis, amounts that plaintiff’s counsel did not challenge on a quantum basis. The plaintiff’s position was that the defendant’s claim for costs should be dismissed on its merits.

[9] The trial judge noted that the plaintiff had successfully established liability and that the jury believed he suffered a personal injury as a result of the accident. From there Cumming J. went on to observe that the plaintiff had had a difficult life and has no apparent resources.

[10] In the critical part of his analysis (para. 15) Cumming J. said that taking into consideration the factors listed in rule 57.01 he found this to be an exceptional case where costs should not be awarded. He said “given the complexity of the plaintiff’s medical history and present complaints in respect of his headaches and their cause(s), it cannot be said that it was clearly unreasonable for him to pursue his claim to trial and receive a determination by a judge/jury. The goal of access to justice in such circumstances has some force.”

[11] In the next paragraph the trial judge went on to observe that the plaintiff’s problems and the jury’s findings on liability and acceptance that the plaintiff did suffer some injury in the accident were matters relevant to the question of cost within the ambit of rule 57.01(i). In the exercise of his discretion, therefore, he felt that the matter was an exceptional situation where no costs should be awarded to the successful defendant.

[12] The defendant submits that while costs are discretionary, such discretion must be exercised judicially. Parties are reasonably entitled to expect that costs will follow the event, save when special circumstances exist.

[13] In this case, argues the defendant, there was no finding of misconduct on the part of the defendant and no other special circumstances warrant a deviation from the normal and reasonable expectations of the parties. Accordingly, the trial judge failed to exercise his discretion judicially.

Analysis

[14] The general principle as to granting of leave to appeal costs is that such should be given sparingly. At paragraph 11 in his decision in Children’s Aid Society of Hamilton-Wentworth v. S.R., [2003] O.J. No. 3075, Whitten J. said that leave to appeal will be granted if the discretion is not exercised on the facts of the case or if it is exercised on facts wholly unconnected with the cause of action or the judgment has proceeded on some erroneous principle of law.

[15] The Ontario Court of Appeal in Bell Canada v. Olympia & York Developments Limited et al.; Corporation of the City of Ottawa et al., Third Party (1994), 17 O.R. (3d) 135, provided some assistance concerning when a successful party might justifiably be denied costs. The Court stated that while a successful party has no entitlement to costs, he or she is entitled to reasonable expectation of costs in the absence of special circumstances. The Court concluded that the trial judge erred in principle in denying costs solely on the basis of the failure to offer to settle the case. However, it was only when the Court concluded there was no other independent basis for the exercise of discretion, that it allowed the appeal and referred the matter back to the trial judge to fix costs or direct an assessment.

[16] In this case, unlike in Bell Canada, two factors provide an independent basis for the exercise of Cumming J.’s discretion not to award costs to the successful party, namely, the finding of liability and the finding of damage arising from that liability.

[17] Notwithstanding the able argument of defence counsel, it cannot be said that the trial judge exercised his discretion as to costs based on some misapprehension as to the facts. Given the two legitimate independent reasons upon which the trial judge exercised his discretion not to award costs to the successful party, I also find that Cumming J. did not proceed on some erroneous principle of law.

[18] The application for leave to appeal is therefore dismissed. If costs of this motion for leave are sought and the parties are unable to resolve the matter, they may make written submissions to me in writing within 20 days.

EPSTEIN J.

DATE: June 14, 2006