Following a personal injury trial in which the plaintiff succeeded and obtained damages exceeding pre‑trial settlement offers, the court determined the appropriate costs award.
The court considered the costs discretion under s. 131 of the Courts of Justice Act and the factors under Rule 57.01 of the Rules of Civil Procedure, as well as the cost consequences relating to Rule 76 simplified procedure.
Although the damages awarded were within the simplified procedure monetary threshold, the court found it was reasonable for the plaintiff to proceed under the ordinary procedure given the seriousness of the injuries, the defendant’s firm denial of liability, and the procedural complexity including a jury trial that was later discharged.
The court held that Rule 76 should not deprive the plaintiff of costs and that the plaintiff’s favourable settlement offers justified partial indemnity costs before the first offer and substantial indemnity costs thereafter.
Costs were fixed at $84,100 inclusive of HST and disbursements.