Robert A. Betts

Following a successful summary judgment dismissing the plaintiff’s personal injury claim arising from a ski accident, the defendant sought costs of the motion and action.

The plaintiff argued that no costs should be awarded due to his impecuniosity.

The court considered the factors under Rule 57.01 of the Rules of Civil Procedure and s. 131 of the Courts of Justice Act.

While acknowledging the plaintiff’s low income, the court held that impecuniosity alone does not justify avoiding the normal costs consequences, particularly where the plaintiff rejected a settlement offer and attempted to leverage litigation costs during negotiations.

Partial indemnity costs of $63,000 were awarded to the defendant, with half payable immediately and the remainder stayed for 24 months.

The plaintiff sued the defendant ski resort for negligence after fracturing his clavicle by colliding with a fluorescent orange mesh ribbon used to close a ski run at night.

The defendant moved for summary judgment, arguing there was no negligence and relying on a signed liability waiver.

The court granted the motion, finding no genuine issue requiring a trial.

Using enhanced fact-finding powers, the court determined the obstacle was clearly visible, snow-making equipment was not operating, and the plaintiff failed to keep a proper lookout.

Furthermore, the court held that the liability waiver signed by the plaintiff was prominently displayed, fully enforceable, and provided a complete defence to the claim.