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Plaintiff's Estate Not Required To Pay Defendant's Costs When Action Discontinued After Death of Plaintiff Pais v. 796413 Ontario Limited On May 26, 2008, HSH's George Pappas brought a motion before Justice Corkery seeking an order discontinuing the Plaintiff's action without costs after the death of the Plaintiff. After having commenced an action on June 10, 2004 for injuries sustained in a slip and fall incident at her home, the Plaintiff unexpectedly died in March of 2008 due to unrelated causes. The Defendant was a self-insured builder responsible for the construction of the Plaintiff's home and was seeking its substantial costs for defending the action for four years. In his decision, Justice Corkery noted the inconsistency in the jurisprudence regarding the test to be applied by the Court when exercising its discretion to depart from the rule that entitles the defendant to its costs. His Honour held that the “justified action” test in Provincial Crane Inc. v. AMCA International Ltd. , was the applicable test instead of the “exceptional circumstances” test originally set out in Mele et a. v. Thorne Riddell et al . Unless the Court of Appeal decides otherwise, the plaintiff need only show that there is enough evidence to justify the commencement of an action, regardless of whether the plaintiff would ultimately have succeeded at trial, to have the litigation costs shift to the defendant. His Honour dismissed the Plaintiff's action without costs. The recent decision of Justice Boswell in Golda Developments Inc. v. Dawe is the seminole case in the Court's attempt to clarify the previous case law on this issue and was cited by Justice Corkery as authority in his decision. Justice Corkery has yet to release his written reasons. Please contact George Pappas for more information by clicking here. HSH Lawyers: |
Integrity is the key to understanding legal practice. Law's empire is defined by attitude, not territory or power or process. Ronald D. Dworkin
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