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[154] The trial judge’s assessment of costs, in any event, at approximately $409,000 on a judgment of $22,136.60, (or $34,000, as the trial judge found) is out of all proportion and cannot stand. This was a chronic pain case. These sorts of cases are never a sure thing from the plaintiff’s perspective. The defence will, as here, put the plaintiff to the strict proof of his case. There was nothing “wrong” with the defence expert giving evidence that he found signs suggestive of malingering in the plaintiff’s test scores.
[155] A defendant is not expected to sit back and simply take a plaintiff’s evidence at face value. This plaintiff had, between the time of the accident and the time of trial, managed to earn a black belt in martial arts. Given that fact, it is not surprising that the defence argued that the plaintiff was not as disabled as the plaintiff had suggested in his evidence, nor was it inappropriate for the defence to lead psychiatric evidence to suggest that the plaintiff was a “malingerer”. This defence evidence did not waste court time, as the plaintiff argues. Indeed, it is apparent from the verdict that the jury preferred and accepted the defence version of the case.
[156] The plaintiffs’ lowest offer to settle was for $500,000 plus costs. These parties were very far apart in terms of their view of the worth of the case.
[157] Although the case took some 19 days to try, any costs award must reflect the reality that the final judgment, after this court’s correction of legal errors, was for only $22,136.60. The costs ordered by this trial judge are in an amount that might have been expected had the plaintiffs achieved a judgment closer to the range of value that they had placed on their case. Of course, the amount of the jury’s verdict was $220,000, but the amount remaining from that verdict after all relevant deductions is the relevant one for costs assessment because a plaintiff’s right to tort compensation is to an amount net of any collateral benefits and statutory deductions: Pilon v. Janveaux (2006), 211 OAC 19 (C.A.), at paras 15-17.
[158] As I already have mentioned, in his reasons on costs, the trial judge noted that, if he was wrong on the application of the statutory deductible, he would have ordered both parties to bear their own costs. The defendant indicated to this court that it would be content with the trial judge’s alternative order. In my view, the conclusion that each party should bear its own costs is a reasonable one.
[159] On any proportional basis, the plaintiff’s costs, even taking the defence offer out of the equation for the moment, could not have been expected to exceed approximately $200,000, given the results achieved.
[160] When the defendant’s offer comes into play, the costs payable to the defendant are approximately equal to or more than the plaintiff could hope to recover. In the circumstances, in my view, the fairest result to both sides is that each party bears its own costs.
G. DISPOSITION
[161] In the result, I would dismiss the plaintiffs’ appeal and allow the defendant’s appeal, including its appeal from the trial judge’s costs award. For the reasons that I have provided, I would reduce the amount of the judgment to $22,136.60 and I would order each party to bear its own costs of the proceedings below.
[162] I would allow the parties to file written submissions on the costs of these appeals to the panel, the defendant within two weeks of the release of these reasons and the plaintiff within two weeks thereafter, with submissions by each party not to exceed ten pages in length.