• FAIR – supporting auto accident victims through advocacy and education
  • FAIR – supporting auto accident victims through advocacy and education
  • FAIR – supporting auto accident victims through advocacy and education

Latest News Articles

July 23, 2019

by Admin2

TD Insurance fined over $3 million

The Financial Services Commission of Ontario’s Superintendent of Financial Institutions slapped the four insurance subsidiaries of TD Bank with whopping fines totalling $3.2 million  
 
Auto Insurance Rates for the Second Quarter of 2019
______________________________________________________________

You Can’t Hurry Love: LAT refuses to consider interim Order for Benefits

In the most recent case, there was a lag of over year between the date of the application for accident benefits and the in-person hearing on the issue of attendant care. In that period, the applicant claimed to have incurred more than $18,000 in attendant care. The applicant argued that this financial burden created a risk that he would not be able to receive adequate care before the LAT hearing on the issue of attendant care benefits. The Applicant wanted an order awarding him attendant care benefits until such time as the issue was decided before the LAT. 
 
_______________________________________________________________

How hitting a bicycle can lead to six-figure liability claim

In St. Marthe v. O’Connor, released this past Monday, Ontario Superior Court Justice Patrick Hurley awarded Peter St. Marthe $380,000 (including sales taxes and disbursements) for his legal bills alone to pursue his tort claim. 
 
______________________________________________________________

The New Litigators Guide: Your First Discovery

You have one advantage over more senior lawyers: your time is less valuable. You can, and should, spend far more time preparing for a discovery then a senior lawyer ever would. Senior lawyers will probably know the law better than you. But with time on your side, you can know the facts better than a senior lawyer. In that vein, be the most prepared person in the room. 
 
_______________________________________________________________

Hard Questions About Justice

That number is by now fairly recognizable among many in social justice circles. It originates from an April report issued by the Global Task Force on Justice, citing 5.1 billion as the number of people around the world who lack access to justice in one form or another.

_______________________________________________________________

Ontario should switch to no-cost class actions, law commission says

An independent study by Ontario’s legal reform watchdog suggests major changes to how lawyers approach the more than 100 class actions filed each year. 
 
______________________________________________________________

Accident Benefits and the Challenge of Chronic Pain

Claimants injured in a motor vehicle accident have access to benefits under their own insurance (or through another driver’s insurance policy, or the Motor Vehicle Accident Claims Fund) to help compensate for losses such as, but not limited to, medical and rehabilitative benefits, income replacement, lost educational expenses, attendant care and damaged clothing or medical devices. 
 
_______________________________________________________________

Canadian Pain Task Force Report: June 2019

The Canadian Pain Task Force was established in March 2019 to help the Government of Canada better understand and address the needs of Canadians who live with pain. Through to December 2021, the Task Force is mandated to provide advice and information to guide government decision-makers towards an improved approach to the prevention and management of chronic pain in this country.
 

___________________________________________

This case follows the over $300,000.00 in costs awarded against Aviva who consistently offered $0.00 even when their own expert stated that the collision caused the Plaintiff chronic pain. (St. Marthe v. O’Connor, 2019 ONSC 4279 (CanLII), <http://canlii.ca/t/j1gzs  )

Brophy v. Harrison, 2019 ONSC 4377 (CanLII), <http://canlii.ca/t/j1kb9  

[22]           With respect to the defendant’s submissions regarding the Small Claims Court jurisdiction, in my view it was reasonable for the plaintiff to bring her action in Superior Court under the regular rules.  Her case had merit and her decision to continue to trial was reasonable in the absence of any offers from the defendant.  I reject the defendant’s position that the plaintiff’s award of costs should be reduced because the ultimate verdict of the jury was less than the Small Claims Court limits.

[23]           In terms of proportionality, I look to the decision of Hackland J. in Corbett v. Odorico, 2016 ONSC 2961 (CanLII), in which he held that:

In my view, to impose a rule arbitrarily limiting the amount of costs to some proportion of the recovery when there has been no offer of settlement, or only a nominal offer as in this case, would undermine the purpose of Rule 49, which is to encourage settlement by attaching costs consequences for failure to make or accept reasonable offers. It would also encourage the type of “hard ball” approach to settlement employed in this case.

[24]           Justice Hackland also refenced Aacurate v. Tarasco, 2015 ONSC 5980 (CanLII), where McCarthy J. comments that declining to make realistic costs awards in modest cases would send a message to litigants that it is not worth one’s while to pursue legitimate claims in court, because one cannot possibly make it cost effective to do so.

[25]           I find favour with McCarthy J.’s conclusion that limiting the losing party’s exposure to costs proportionate to the size of the claim would encourage those resisting legitimate but modest claims to take unreasonable positions.

Conclusion

[26]           The defendant urges that if the court is not prepared to award costs within the jurisdiction of the Small Claims Court, then proportionality should be the yardstick against which costs are measured.

[27]           To accede to this argument would unduly shave the plaintiff’s costs, based solely or primarily on an undue emphasis on the application of proportionality: Persampieri v. Hobbs, 2018 ONSC 368 (CanLII), at para 95.

[28]           When assessing costs, not only are the reasonable expectations of the successful party to be considered, the court must also look to the reasonable expectations of the unsuccessful party: Boucher.

[29]           Despite my direction that a Bill of Costs was to be included with written submissions, the defendant chose not to do so.  Without knowing what the defendant’s costs were for this trial, I cannot complete the “reasonable expectation” analysis.  The inference to be drawn is that the quantum of the defendant’s costs approaches those of the plaintiff. 

[30]           The defendant took what I would view to be a hard-ball approach to this claim, and now must accept the consequences of that decision.

[31]           After considering all of the above, the plaintiff is awarded costs in the amount of $210,587.20, plus disbursements of $64,869.40 (both figures inclusive of HST), for a total of $275,456.60.  There has been no reduction for costs thrown away for trial preparation.

Comments are closed.