HSH extends their best wishes to Jadranka Cavrak as she pursues a career change with the Law Society of Upper Canada. Click here. |
THRESHOLD AND DEDUCTIBLE NOT CONSIDERED IN COST ASSESSMENT In Dennie v. Hamilton, 2008, Whalen J. addressed the issue of costs in motor vehicle accident claims pursuant to s. 267.5(9) of the Insurance Act and held that costs should be determined by comparing offers and trial results, without applying the deductible ( Rider v. Dydyk ) and equally, without consideration of the threshold questions. The parties had made Rule 49 offers net of the deductible. In comparing the offers to the trial results, Whalen J. added the $15,000 Bill 59 deductible to the general damages offered, effectively making the defendants offer $30,000 and the plaintiff's offer $60,000. The defendant's offer, however, included “Costs at 15%”, but did not specify 15% of what. As this part of the offer was uncertain, the court held that it was ineffective as an offer under Rule 49. The jury awarded the plaintiff a total of $40,000. Despite the fact that the plaintiff did not meet the threshold, the Court found that the jury's award exceeded the defendants' offer (even if it had been effective at $30,000). The plaintiff was therefore entitled to partial indemnity costs for the entire action. One has to wonder why substantial indemnity costs were not awarded given that the defendant's offer was held to be ineffective under Rule 49. HSH Lawyers: |
"Consider the reason of the case, for nothing is law that is not reason." - J. Powell
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