Fridays With Rogers Partners

This morning, at our weekly muffin meeting, we discussed two very interesting cases dealing with costs.

Apportionment of Costs Between Defendants

Matthew Umbrio discussed the Court of Appeal’s decision in Bondy-Rafael v. Potrebic, 2019 ONCA 1026. The action arose out of an accident at a plaza. Two young plaintiffs were struck by an SUV.

One set of defendants, the Potrebics, settled with the plaintiffs for $1 million plus interest. Another set of defendants, the Pipolos, settled with the plaintiffs for $1 million plus costs to be determined by the court and allocated between the Potrebics and the Pipolos.

In dealing with costs, the motion judge examined liability and concluded that the Potrebics were entirely liable for the plaintiffs’ damages. As a result, the motion judge found the Potrebics solely responsible to pay the plaintiffs’ costs.

On appeal, the Court of Appeal held that this was an error.  An apportionment of costs between defendants based on an apportionment of liability should only be done following a trial.

The Court of Appeal stated that it is inappropriate for a court to embark on a full examination and adjudication of the merits of the parties’ substantive claims and defences for the sole purpose of determining the question of costs.

The Court of Appeal apportioned costs equally as between the Potrebics and the Pipolos. This was consistent with the fact that they contributed equally to the settlement.

On another note, the Court of Appeal upheld the motion judge’s determination that the plaintiffs are entitled to fees of $800,000. The Court of Appeal rejected arguments that the fees were disproportionate and that the motion judge improperly took into account the amounts the plaintiffs received in settling their accident benefits claims.

Defendant Denied Costs After Succeeding at Trial

Ankita Abraham addressed the case of Przyk v. Hamilton Retirement Group Ltd., 2019 ONSC 7498. An elderly resident at a retirement home slipped and fell on a sidewalk.

Prior to trial, damages were agreed on at $75,000. The defendant took a “no liability” position. The matter proceeded to a trial on liability. The jury found no liability on the defendant.

Justice Whitten ordered each party to bear its own costs. His Honour believed that this was required for access to justice reasons.

This was a surprising outcome. The defendant’s decision to contest liability was correct, as demonstrated by the jury’s verdict.