Robert John Hooper

Following a successful civil trial, the plaintiffs sought costs after beating their Rule 49 offer to settle.

The court considered Rule 49.10 of the Rules of Civil Procedure and the discretionary factors under Rule 57.01 and s. 131 of the Courts of Justice Act.

The plaintiffs were entitled to partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter.

The court emphasized that costs awards must be fair and reasonable to the unsuccessful party and are not a precise calculation of actual legal fees.

Costs were fixed globally at $75,000 inclusive of disbursements and taxes.

The plaintiffs brought an action against a municipality for damages arising from a trip and fall on a sidewalk.

The court considered whether the sidewalk was in a state of disrepair under s. 44 of the Municipal Act, 2001 and whether the municipality could rely on statutory defences.

The court found that a significant sidewalk crack and height differential constituted a state of disrepair and that the municipality failed to establish that it had taken reasonable steps to prevent the default.

The plaintiff pedestrian was found contributorily negligent for failing to pay adequate attention despite familiarity with the defect.

Damages were awarded for personal injury, wage loss, and related losses, subject to a 25% reduction for contributory negligence.