Ruling on Costs - Armstrong V Lakeridge Resort 2017 ONSV 6565

January 31, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Armstrong V Lakeridge Resort 2017 ONSV 6565

Date of Decision: November 6, 2017
Heard Before: Salmers, J.

DISBURSEMENT FOR ATE ADVERSE COSTS INSURANCE: plaintiff awarded fair and reasonable costs of the action including the trial

Ruling on Costs:

After a jury trial the plaintiffs recovered damages of $68, 250. The ultimate position was that the costs should be fixed at $128, 617 all inclusive ($74,000 + HST fees and $39,500 + HST disbursements).

Lakeridge relied on Rule 76.13 (2) and (3) that no costs should be awarded as the amount recoverable was less than $100,000 and Armstrong was not reasonable in proceeding with action instead of the ordinary procedure and simplified Rules.

J. Salmers reviewed the evidence and the law and rejected Lakeridge’s submission on the following basis. He noted that This was a straightforward personal injury trial that involved only average legal and factual complexity.

While the jury award was less than $100,000, the award would have been far greater than $100,000 if the jury had awarded rather modest damages for the plaintiff Kyle Armstrong’s loss of income claim. This loss of income claim was supported by the evidence of three expert witnesses called by the plaintiffs. Further, there was some evidence of experts called by the defence that could have been used by the jury to support an award for loss of income. Although, after hearing the evidence, it was open to the jury to dismiss the loss of income claim, it also would have been reasonable for the jury to find that there was a very significant loss of income claim. If the jury had awarded damages for loss of income, the award would have been far greater than $100,000. In these circumstances, J. Salmers was satisfied that it was reasonable for the plaintiffs to commence and continue the action using the ordinary procedure. Accordingly, Rule 76.13(3) is not engaged in this case

J. Salmers reviewed the costs and noted that fixing of the plaintiff’s costs was complicated by the billing method used. At the costs hearing, plaintiffs’ counsel acknowledged that the rate claimed for junior trial counsel was a little too high. Accordingly, there must be some reduction in the amount claimed by the plaintiffs for costs. Considering what transpired in this case, and after examining the disbursements, I am satisfied that there were some excessive claims for fax, photocopies, file storage, scanning, and software for which the disbursements must be reduced. Further, the travel expenses are not allowed.

About Deutschmann Law

Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.