Court File and Parties
COURT FILE NO.: CV-13-489944
DATE: 20220530
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DOMINIC NYARKO
Plaintiff
– and –
AYAN M. ABSHIR
Defendant
Counsel:
Paul Giuliano and Anastasia Sukalsky, Lawyers for the Plaintiff
Sarah Reisler and Gillian Mays, Lawyers for the Defendant
HEARD: WRITTEN SUBMISSIONS
G. DOW, J.
REASONS FOR DECISION ON COSTS
[1] This matter proceeded to trial with a jury on March 29, 2022 with the jury’s verdict rendered April 19, 2022. Dominic Nyarko sought damages for personal injuries suffered on October 4, 2011 when he was a passenger in a vehicle that was struck by another vehicle owned by Ayan Abshir. Liability was admitted.
[2] The jury awarded general damages including loss of housekeeping capacity in the amount of $38,000.00, past loss of income in the amount of $13,000.00 and future loss of income of zero. The matter was complicated by medical evidence of the plaintiff’s uncontrolled hypertension which existed before the car accident as well as a subsequent stroke in August, 2013. It would appear from the jury verdict that they were not persuaded the stroke was related to the motor vehicle accident and rendered Mr. Nyarko unable to work. Mr. Nyarko had poor recollection of events in his life while testifying and had difficulty explaining his family doctor’s handwritten note of actually being 65 years of age in March, 2015. This was in spite of documents and identification (created from when he immigrated to Canada in 1991) which indicated his age as of March, 2015 to be 49 years old. He was also unable to explain regular, sometimes weekly, deposits of more than $800.00 into his bank account in the months before the stroke. Defence counsel suggested to the jury this was the result of his having returned to some kind of self-employment which Mr. Nyarko denied.
[3] During deliberations, I heard submissions regarding whether Dominic Nyarko’s injuries surpassed the verbal threshold under Section 267.55(5)(b) of the Insurance Act, R.S.O. 1990, c. I.8. On April 20, 2022 following the jury’s verdict, I gave reasons that the injuries arising from the motor vehicle accident of October 4, 2011 did not meet the verbal threshold (2022 ONSC 2369) and dismissed the claim for general damages. I also noted the jury award was less than the applicable $41,503.50 deductible to be applied pursuant to Section 267.5(8.3) of the Insurance Act, supra, which would have reduced the claim for general damages to zero in any event.
[4] Similarly, the parties agreed that Dominic Nyarko had received $39,228.98 of income replacement benefits which Section 267.8(1)1 of the Insurance Act, supra required be deducted from the loss of income award reducing it to zero. As a result, Dominic Nyarko’s claim was dismissed.
[5] The parties sought and I reluctantly agreed to receive written submissions on costs. The defendant sought costs totaling $165,000.00 inclusive of fees, HST and disbursements or less than the full amount of their Costs Outline. I required each party to submit to me their claim for costs, if successful, before the jury verdict. The defendant’s Costs Outline claimed $153,690.90 for partial indemnity fees plus HST of $19,979.82 and disbursements totaling $93,395.92, inclusive of HST. The plaintiff sought that I exercise my discretion and award no costs in the circumstances as described below. The plaintiff’s Costs Outline detailed $270,629.75 for partial indemnity fees plus HST of $35,181.87 and disbursements totaling $92,354.14.
[6] The defendant’s submissions in support of its claim for costs relied on:
a) the series of Offers to Settle made by each side under Rule 49.13, none of which were in effect as of the commencement of the trial so as to invoke the costs consequences under Rule 49.10;
b) its complete success at trial;
c) the amount sought was proportional and similar to amounts awarded in other similar length motor vehicle personal injury trials where a zero recovery occurred;
d) the amount sought was less than the award the plaintiffs were seeking if successful; and
e) the absence of any conduct which would deprive them of costs such as lengthening the trial, contesting liability or having called all of its scheduled witnesses.
[7] The plaintiff submitted its claim for the exercise of the discretion afforded under Section 131 of the Courts of Justice Act, R.S.O. 1990 c. C.43 and Rule 57.01 to award no costs was supported by:
a) the claim had merit and it would not be in the public interest to deter injured litigants from advancing deserving claims;
b) support should be given to impecunious litigants to encourage access to justice where the costs of litigation can go beyond the resources of persons with average means;
c) the uncompromising approach to settlement by the defendant should not be rewarded; and
d) any award of costs against this plaintiff would result in an unfair and onerous human and financial hardship despite the plaintiff’s inability to pay any such award.
Analysis
[8] Regarding the defendant’s position, I agree that, save special circumstances, the successful litigant has a reasonable expectation of costs. The Offers to Settle referred to date back to December, 2020 when the plaintiff proposed settlement in the amount of $80,000.00 plus costs and disbursements to be agreed upon or assessed. This was responded to with the defendant’s offer of a dismissal without costs open for a limited time. The next Offers to Settle referred to were in March, 2022 or shortly before the trial began when the plaintiff offered $2,500.00 and then $1,000.00 for damages plus, in each offer, partial indemnity costs and disbursements to be agreed on or assessed. These were rejected by the defendant. It should be noted the costs and disbursements sought at that stage were stated to be $168,416.90 for partial indemnity fees inclusive of HST and $67,234.17 for disbursements.
[9] The defendant’s response was for return of $5,000.00 it had paid the plaintiff in costs as part of not proceeding with a motion to withdraw its admission of liability. The defendant had recently discovered information which suggested the accident of October 4, 2011 had been staged. As indicated, the trial proceeded as an assessment of damages with liability admitted.
[10] Regarding any conduct on the part of the defendant that could be considered to require sanctioning by the court, defence counsel chose not to call one of its experts, a neurologist, after being satisfied with the evidence of the plaintiff’s neurologist on the issue of whether the plaintiff’s stroke was casually linked to the motor vehicle accident. The Costs Outline of the defendant includes $33,122.30 for the disbursements incurred to have the neurologist prepare his reports and be prepared to testify at the trial. This compares to the costs of the plaintiff’s neurologist reports, trial preparation and attendance at trial in the amount of $13,684.00.
[11] In summary, the defendant relied on its willingness to allow the plaintiff to abandon what turned out to be completely unsuccessful litigation with no costs until weeks before the trial commenced while faced with the demand to pay in excess of $200,000.00.
[12] Regarding the plaintiff’s submission, that the claim had merit, the jury verdict following application of known legislative deductibles and deduction for collateral benefits, indicated otherwise. The Insurance Act, supra, at Sections 258.5 and 258.6 impose obligations on the insurers of automobile owners to make efforts to resolve claims as “expeditiously as possible”. It does not, however, deny it from having issues determined at a trial. The need to encourage settlement must be balanced against unnecessarily discouraging the trial as a means to determine a legal dispute.
[13] I was referred to costs principles identified by my learned colleague,. Justice P. Perell in 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 7238 (at paragraph 10) which indicated indemnifying successful litigants and discouraging frivolous claims. What is reasonable is necessarily judged by the result of the trial. In Mr. Nyarko’s situation, when his settlement position is compared to the result of the trial, it appears the defendant’s position was successful and a discussion about a frivolous claim rests with the plaintiff.
[14] Regarding support being given to impecunious plaintiffs to encourage access to justice, I would note there was nothing in the conduct of the trial that suggested any limitation of resources on the part of the plaintiff. He was not denied access to justice. He proceeded to trial. At the trial, he had two experienced counsel from a firm that specializes in this type of work represent him. The plaintiff called his family physician (virtually), an orthopedic surgeon, a neurologist and a litigation accountant (all in person) to give evidence at the trial and, as part of addressing the jury, submitted they ought to award him damages in the range of $290,000.00 to $390,000.00.
[15] I was advised the plaintiff proceeded under a contingent fee agreement which further promoted his access to justice. Further, with counsel that specializes in personal injury matters, he had the option to explore adverse costs insurance which I was advised was not obtained.
[16] Regarding the uncompromising approach taken by the defendant, aside from the defendant’s unwillingness to offer any substantive compensation (over and above, I was advised of more than $100,000.00 in statutory automobile accident benefits), I was not directed to any other conduct in this matter which would place it in the special circumstances that should deprive the successful litigant of its costs. The authorities provided to me by plaintiff’s counsel where same occurred did not involve any motor vehicle personal injury cases where the credibility of the plaintiff was in issue. Rather, they involved issues of access to land, family law, professional misconduct and estate disputes where the court identified behaviour that formed the basis to deny the successful party its costs. In the trial of this matter, liability was admitted and the witness list of the defendant reduced as part of maintaining a focus on the issues in dispute.
[17] Finally, regarding the onerous human and financial hardship that the sought after award of costs would have on the plaintiff as well as his inability to pay such an award, I have reviewed the specific factors identified in Rule 57.01. This factor is not included. Similarly, the resources of a party to pay a costs award is not contained in either Rule 57.01 or Rule 49. I reject this submission as a basis to deny the defendant the reduced quantum of costs it seeks.
Conclusion
[18] I have concluded the defendant ought to be awarded its costs in light of the dismissal of the action following consideration and review of the above submissions and factors. The amount sought of $165,000.00 represents just over 60% of the partial indemnity fees and disbursements submitted as having been incurred. As a result of such a significant reduction, I have concluded it is not necessary to address, nor was I directed to any concerns about hourly rates, amounts of time recorded or disbursements incurred. I am reinforced in this conclusion by the Costs Outline submitted by counsel for the plaintiff being significantly in excess of what was submitted on the part of the defendant. The order dismissing the action shall include costs of the action or payable by the plaintiff, Dominic Nyarko to the defendant, Ayan Abshir fixed in the amount of $165,000.00, inclusive of fees, HST and disbursements, payable forthwith.
_____________________________ Mr. Justice G. Dow
Released: May 30, 2022
COURT FILE NO.: CV-13-489944
DATE: 20220530
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DOMINIC NYARKO
Plaintiff
– and –
AYAN M. ABSHIR
Defendant
REASONS FOR DECISION ON COSTS
Mr. Justice G. Dow
Released: May 30, 2022