The recent decision of Mayer v. 1474479 Ontario Inc.
relates to a personal injury claim arising from a motor vehicle
accident, but has some interesting tidbits relating to the general
principles of proportionality as it relates to the determination of
cost awards at the conclusion of trial. It also reminds counsel
about the intricacies of crafting offers to settle.
Without delving too deep into the facts of the case, the claim
involved a motor vehicle accident about which liability was
admitted by the defendants. The resulting jury trial was
essentially focused on the question of the plaintiffs' damages.
The original statement of claim sought a total of $1.1 million in
damages. The plaintiffs then sought leave to amend their statement
of claim to seek the maximum payout under the applicable insurance
policy, which was $2 million. They didn't seek this leave,
however, until eight days after the trial had already
started (but before the plaintiff's evidence was
complete), over four years after commencing the
In the end, the jury awarded the three plaintiffs a combined
total of $119,300.
The plaintiffs' counsel then sought costs of the action of
roughly $265,000 plus disbursements of roughly $156,000, over
$421,000 in total.
In the endorsement, Justice Leach notes that "if
'success' is defined by recovery of any positive amount, as
suggested, then the plaintiffs in the case before me were
'successful'...to put it mildly, I have great difficulty
regarding the outcome as a triumph for the plaintiffs, having
regard to their demands and expectations...and the time and
resources they apparently have devoted to the matter (as outlined
in their bill of costs), all of which were entirely
disproportionate to what the case was really worth, as determined
by the jury.
Justice Leach noted elsewhere that the trial was of a longer
than expected duration because of the plaintiffs and their counsel;
that there were multiple experts who were duplicative of each other
and did not add value to the proceeding; and generally that the
case did not proceed in a manner proportionate to its ultimate
Each side was ultimately ordered to bear its own costs.
With respect to offers to settle, Justice Leach noted that the
defendants' offers failed to either advise whether the offers
were global to all defendants or severable from one another, and
were "all-inclusive" offers that did not separate
interest from damages. To trigger Rule 49 consequences, offers
should expressly indicate whether they are severable and should
distinguish the amount of principal, interest and costs so as to
permit the trier of fact to determine whether the ultimate amount
recovered "beat" the amount provided for in the offer to
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