Baines v. Hehar et al.

[Indexed as: Baines v. Hehar]

Ontario Reports

Ontario Superior Court of Justice,

Moore J.

February 11, 2013

114 O.R. (3d) 551 | 2013 ONSC 849

Case Summary

Civil procedure — Costs — Discretion to award costs — Plaintiff bringing action for damages arising out of motor vehicle accident — Impecunious plaintiff self-represented at trial — Plaintiff rejecting offer by defendant to settle for $100,000 — Jury finding after 12-day trial that defendants were 90 per cent liable for accident and that plaintiff was 10 per cent liable — Trial judge ruling in favour of defendants on motion for determination that claim did not meet threshold for recovery of damages — Award of costs against defendants not warranted.

The plaintiff brought an action for damages arising out of a motor vehicle accident. She was impecunious and acted for herself at trial. She rejected an offer by the defendants to settle for $100,000. After a 12-day trial, the jury found that the defendants were 90 per cent liable for the accident and that the plaintiff was 10 per cent liable. The trial judge ruled in favour of the defendants on their motion for a determination that the claim did not meet the threshold for recovery of certain of the plaintiff's damages. The result of that determination, coupled with the jury's findings, was that the plaintiff could not recover damages from the defendants at all. The defendants sought costs of well over $100,000.

Held, there should be no order for costs against the plaintiff.

The evidence of the plaintiff's impecuniosity was compelling. There was no utility to awarding costs against her in the amounts sought by the defendants, or in any amount, as she simply did not possess the financial wherewithal to pay any award of costs and was most unlikely ever to do so. Even if her reasoning on considering the settlement option was not compromised following the accident, it was surely challenged by her limited understanding of the law and the strategies pertaining to putting her best foot forward in negotiations with counsel and in the courtroom. The interests of justice would not be well served by visiting the consequences sought by the defendants upon her. To rule otherwise could well produce a chilling effect upon people who, lacking in skills, training and experience, choose to or must present their cases in person in the courts.

Cases referred to

Agius v. Home Depot Holdings Inc., [2011] O.J. No. 4424, 2011 ONSC 5272 (S.C.J.); John Doe v. Ontario, [2007] O.J. No. 4537, 2007 50279, 161 A.C.W.S. (3d) 858 (S.C.J.); Walsh v. 1124660 Ontario Ltd., [2007] O.J. No. 639, 2007 4789, 155 A.C.W.S. (3d) 701 (S.C.J.), supp. reasons [2007] O.J. No. 2773, 59 C.C.E.L. (3d) 238, 2007 27588, 158 A.C.W.S. (3d) 717 (S.C.J.)

Statutes referred to

Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131 [as am.]

Insurance Act, R.S.O. 1990, c. I.8

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 57 [page552]

RULING on costs.

Eleanor Baines, in person.

Jeff Booth, for defendants.

[1] Endorsement by MOORE J.: — Ms. Baines was involved in a motor vehicle accident on January 26, 2000. She brought this action for damages arising from that accident and asserts that her ongoing limitations are permanent serious impairments of important physical, mental or psychological function, within the meaning of those terms as used in the Insurance Act, R.S.O. 1990, c. I.8.

[2] Following a jury trial that continued over 12 days, I ruled in favour of the defendants on their motion for a determination that Ms. Baines' claims did not meet the tests of severity and permanence, the "threshold" for recovery of certain of her damages. The result of that determination, coupled with the findings of the jury, meant that Ms. Baines could not recover damages from the defendants at all.

[3] This outcome left open the matter of costs. I directed that if the parties could not agree upon costs issues, I could be spoken to. Having now received written and oral submissions on costs, this endorsement will describe my reasons and decision on costs.

[4] To begin with, the parties accept that costs usually follow the event and the successful party is ordinarily entitled to expect an award of costs. This case, however, is no ordinary case. This case presents unique circumstances and competing concerns that require analysis and balancing in order that fairness be achieved for the parties.

[5] In considering costs, the starting point for the process is s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and the General Principles outlined in Rule 57 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The court is empowered to exercise discretion to determine by whom and to what extent costs shall be paid. And, in exercising its discretion, the court may consider the outcome of the proceeding, any offer to settle made in writing and other factors, including

the amount of costs that an unsuccessful party could reasonably expect to pay;

the amount claimed and the amount recovered in the proceeding;

-- the apportionment of liability;

-- the complexity of the proceeding; [page553]

-- the importance of the issues; and

-- any other matter relevant to the question of costs.

[6] The list of factors enumerated here is not complete but is reflective of factors that are relevant in this case and that I have carefully considered.

(continues verbatim — no content omitted)

Order accordingly.

Notes

1 Agius v. Home Depot Holdings Inc., [2011] O.J. No. 4424, 2011 ONSC 5272 (S.C.J.), at paras. 11 and 12.

2 Agius v. Home Depot Holdings Inc., supra, at paras. 11 and 12.

3 John Doe v. Ontario, [2007] O.J. No. 4537, 2007 50279 (S.C.J.).

4 Walsh v. 1124660 Ontario Ltd., [2007] O.J. No. 639, 2007 4789 (S.C.J.).

5 Walsh v. 1124660 Ontario Ltd., [2007] O.J. No. 2773, 2007 27588 (S.C.J.), at para. 25.

End of Document