Robert Zigler

Following the settlement of a tort action arising from a pedestrian struck by a transit bus, the parties disputed the quantum of costs payable to the plaintiff.

The defendant argued the pretrial judge lacked jurisdiction to fix costs and that costs should only be proportional to the $100,000 tort component of the settlement, excluding the $550,000 statutory accident benefits component.

The court declined to recuse itself, finding jurisdiction to fix costs.

The court held that costs should be assessed on the global $650,000 settlement because the defendant directly benefited from the accident benefits settlement by reducing its tort exposure.

The court fixed partial indemnity fees at $300,000, post-settlement fees at $20,000, and disbursements at $125,000, plus HST.

In a medical negligence action arising from dental treatment, the defendants brought a summary judgment motion seeking dismissal of the claim and argued that an alleged condition described as “geographic tongue” was not caused by any negligence of the treating dentist.

After releasing earlier reasons dismissing the summary judgment motion, the court permitted additional written submissions on whether causation regarding that specific condition should nonetheless be resolved on the motion record.

The court declined to isolate and determine a discrete causation issue at the summary judgment stage.

It held that questions of damages and causation should be determined by the trial judge on a full evidentiary record, including expert evidence.

The action was therefore left to proceed to trial.

The defendant brought a motion for summary judgment to dismiss the plaintiff's motor vehicle accident claim based on the expiry of the limitation period.

On the eve of the motion, the defendant abandoned it, and the parties attended a hearing solely to determine costs.

The plaintiff sought costs on a substantial indemnity basis, arguing the motion was unreasonable from the outset because the permanency of her injuries was not discoverable until a later medical report was obtained.

The court found no reason to depart from the presumption under Rule 37.09(3) that the responding party is entitled to costs of an abandoned motion.

However, the court declined to award substantial indemnity costs, finding no bad faith or egregious conduct by the defendant.

Costs were fixed at $12,500 on a partial indemnity basis.

Following a jury trial in two related motor vehicle personal injury actions where the plaintiffs recovered no damages, the defendants sought substantial partial indemnity costs exceeding $178,000 against one plaintiff.

The court considered the general principles governing costs under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, including reasonableness, the indemnity principle, and access to justice.

The plaintiff argued that costs should be nominal or none due to financial hardship, lack of employment, and the presence of some medical evidence supporting the claim.

The court held that while unsuccessful litigants should generally pay costs, impecuniosity and hardship may be considered in fixing the quantum.

Balancing these factors, the court reduced the costs significantly and ordered the plaintiff to pay $35,000.