The plaintiff was injured in a vehicle accident and sued for negligence.
The trial judge found the defendants entirely responsible for the accident but held that the plaintiff had not suffered a "permanent and serious injury" under the Insurance Act, thus precluding non-pecuniary damages.
The trial judge awarded $1,680 for lost income and $40,000 in costs to the plaintiff.
The defendants cross-appealed, challenging the trial judge's decision to allow a late amendment to include a lost income claim and the costs award.
The Court of Appeal upheld the trial judge's discretion in allowing the late amendment, finding no prejudice to the defence.
However, the Court of Appeal granted leave to appeal the costs order, concluding that the trial judge erred by overemphasizing the defendants' failure to make a settlement offer, given that the lost income claim (the only successful claim) was not clearly articulated until the end of trial.
The Court of Appeal varied the trial order to provide for no costs at trial and awarded the defendants costs of the appeal.
