[1] The plaintiff sued the defendants for more than $1million in damages that he claimed to have suffered as a result of a very minor fender bender. The bulk of the trial involved the plaintiff’s efforts to prove that he suffered injuries and chronic pain that his injuries and pain were caused by the car accident. After 13 days of testimony, the jury returned a verdict for the defendant of $3,000 in general damages and zero for special damages (consisting of: past and future loss of income, past and future care, and housekeeping expenses). Having regard to the statutory deductible under s. 267.5 (7) of the Insurance Act, RSO 1990, c.I.8, the plaintiff received no recovery so the action will be dismissed.
[2] The plaintiff’s recovery for the purpose of assessing costs is the final number after application of the statutory deductible under s. 267.5 (7). Mandel v Fakhim, 2016 ONSC 6538 (CanLII) at para. 32. Therefore costs are assessed on the basis of zero recovery rather than $3,000 recovery.[1]
[3] As the defendant succeeded and the plaintiff obtained no award at all, the presumptive cost consequences of Rule 49.10 do not apply to this action. However, Rule 49.13 provides that the court has a residual discretion to consider offers to settle in making its costs determination. Costs can be awarded, for example, on a substantial indemnity basis to a defendant who successfully defends an action after having made a positive offer to settle. The normal costs on a partial indemnity basis apply up to the date of the offer and substantial indemnity costs may be ordered thereafter under Rule 49.13 and the general wording of Rule 57.01. Lakew v. Munro, 2014 ONSC 7316 (CanLII) at para. 55 and S & A Strasser Ltd. v. Richmond Hill (Town), 1990 CanLII 6856 (ON CA).
[4] The defendants offered to settle with the plaintiff on August 31, 2016 on the basis that they would pay the plaintiff $60,000 plus his costs. Having beat their offer and obtained a complete dismissal of the claim, the defendants ask for their costs on a partial indemnity basis to the date of the offer and a substantial indemnity basis thereafter in the aggregate amount of almost $355,000.
[17] I am not assessing the lawyers’ accounts on a docket-by-docket basis. Overall the task is to assess reasonableness. Recognizing another 10% deduction for potential duplication, inefficiencies, and minor off-tariff disbursements, is appropriate. In my view it is fair and reasonable in light of all of the factors noted above for the plaintiff to pay the sum of $280,000 to the defendants jointly and severally for costs, including fees, disbursements and taxes.