1.2: Purpose and intention of these rules
10.29: General rule for payment of litigation costs
10.31: Court-ordered costs award
10.33: Court considerations in making costs award
10.42: Actions within Provincial Court jurisdiction

Case Summary

This was a Costs Decision arising from an Action in which the Plaintiff alleged he suffered severe injuries from a low-velocity motor vehicle accident. The Court found the injuries to be minor. The Plaintiff in the underlying Action sought general damages of $125,000 and special damages of $100,000 but was only awarded $4,722 for his injuries.

The Plaintiff’s counsel made a Costs submission without notice to the self-represented Defendant and sought Costs in the amount of $12,378, a value close to three times the damages Award and representing 75% of the maximum Costs available under Column 1 of Schedule C. The Plaintiff’s counsel submitted that the Plaintiff minimized Costs in the following ways: (1) he only sought Costs for a single counsel when the Plaintiff was represented by two counsel at Trial; and (2) he entered relevant medical records as evidence without witness testimony and bypassed the Judicial Dispute Resolution Process (JDR). The Plaintiff’s counsel also argued that the Defendant unnecessarily prolonged and complicated the process by not cooperating in the Plaintiff’s efforts to bypass Mediation and set Trial.

Referencing Rules 10.29 and 10.31, Sullivan J. noted the general rule that a successful party is entitled to Costs against the unsuccessful party subject to the Court’s general discretion, in light of the factors listed in Rule 10.33 that go into the determination of a reasonable and appropriate Costs Award. 

Sullivan J. first went through the considerations in Rule 10.33(1) and found that: (1) the Plaintiff was successful in the underlying Action; (2) the final damages Award represented just over 2% of the initial damages claim; (3) the issues involved in the underlying Action, namely assigning liability and assessing damages, were not novel and were not likely to have far-reaching implications on future motor vehicle accidents; (4) this was a relatively simple Action wherein the Trial lasted two half-days out of the five days initially allotted; (5) apportionment of liability was irrelevant; (6) while the Plaintiff’s counsel shortened the Action by entering relevant medical records as evidence without witness testimony and by bypassing the JDR, the Defendant also shortened the proceedings as he did not appear at Trial; and (7) there were no known offers to settle that could have saved the Court time and resources.

Sullivan J. then turned to the considerations in Rule 10.33(2). While noting that some factors were inapplicable, Sullivan J. found the following: (1) the self-represented Defendant conducted himself reasonably and to the best of his ability without lengthening or delaying the Action unnecessarily; (2) the Defendant did not deny or refuse to admit anything that should have been admitted; (3) there were no unnecessary Applications, proceedings, or steps taken in the Action; (4) neither party engaged in misconduct; and (5) there was no evidence suggesting that a settlement offer was made.

Lastly, Sullivan J. tackled the significant discrepancy between the amount of damages claimed by the Plaintiff and the amount that he was awarded. Sullivan J. cited Rule 10.42, which restricts Costs to not more than 75% of Column 1 where an Action is brought in the Court of King’s Bench, but where the amount sued for is within the jurisdiction of the Provincial Court. Although the Costs sought by the Plaintiff’s counsel did not exceed the 75% cap, Sullivan J. stated that the 75% limit is a high-water mark rather than an absolute entitlement. In addition, Sullivan J. noted that there was no reasonable basis for the Plaintiff to claim exorbitant damages and pursue an Action in the Court of King’s Bench for a minor vehicle accident.

Given the above, Sullivan J. found justification for departing from the general approach to awarding Costs at a level approximating 40-50% of actual Costs, and held that an adjustment was in line with both the principles of efficiency and fairness under Rule 1.2 and the principle that Costs Awards should be proportional to the interests involved in an Action.

In the result, Sullivan J. awarded the Plaintiff $1,300 for Costs including disbursements.

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