In 2001, Zulfikar Hemraj (the “Plaintiff”), was involved in a three-vehicle motor vehicle accident. The Plaintiff brought a claim against the drivers of the other two vehicles (the “MVA Action”). The Plaintiff was unsuccessful at Trial and commenced a negligence suit against his two former counsel and their respective law firms (the “Defendant Lawyers”), claiming that their negligence had caused his loss at Trial (the “Negligence Action”).

At the Trial of the Negligence Action, Ackerl J. found that the Defendant Lawyers had breached their duty of care to the Plaintiff by failing to draft the Statement of Claim in the MVA Action to properly reflect the ordering in which the vehicles had struck the Plaintiff. Notwithstanding this breach, Justice Ackerl found that the Plaintiff had not established causation between the Defendant Lawyers’ breach of the duty of care and the Plaintiff’s loss at Trial. Accordingly, His Lordship concluded that the Plaintiff was entitled to nominal damages for the breach of the duty of care in the amount of $1,000.

Justice Ackerl reviewed the presumption that a successful party will be entitled to a Costs Award against an unsuccessful party pursuant to Rule 10.29. His Lordship referenced the discretion of the Court to award Costs under Rule 10.30 and the factors to consider under Rule 10.33.

Weighing these factors, Justice Ackerl considered the degree of success and the loss of both the Plaintiff and the Defendants, finding that the Plaintiff had been almost wholly unsuccessful while the Defendants were found to have breached their professional duties. In balancing these factors, His Lordship ordered that the Plaintiff pay 25% of the Defendants’ Costs.