First presented at the CCLA Summit for New Lawyers and
Local Decisions on Costs
Case Study No. 2 of 2: Carroll (Litigation guardian of) v.
This case involved an action for damages arising from a motor
vehicle accident. The Jury divided liability in the proportion of
62/38 between the Plaintiffs and the Defendants. The Plaintiff,
Barbara Carroll, was awarded $300,000 for pain and suffering and
$3.6 million for the cost of future care. The other Plaintiffs,
being the children of the deceased, Lorne Carroll, were awarded
family law damages in the amount of $43,000.
During the course of the trial, the Defendants were taken by
surprise on several occasions. At one point, the Plaintiffs had
'accepted' an offer to settle but then immediately issued a
Statement of Claim against the Defendant Aviva Canada Inc., seeking
$2,000,000 alleging damages for a breach of good faith. This claim
was served on Aviva on the basis that the plaintiffs claimed to be
under the belief that the defendant's offer did not settle the
mala fides claim.
The Defendants were also led to the belief that the Plaintiff,
Barbara Lynn Carroll, would not be called as a witness but this
position changed at trial. After the commencement of trial, the
plaintiff's advised of their change in position and adjourned
the trial to allow for Ms. Carroll's examination. The Court
also found that the Plaintiff did not abide by the Case Management
Order because they produced expert reports late.
After the trial, a hearing took place to determine ancillary
matters. The issue of costs was argued, at length, by counsel. The
Plaintiffs sought costs of $796,616.09. The Defendants took the
position that costs should be reduced substantially or that no
costs should be awarded as proceeding to trial did not benefit the
The Plaintiffs were awarded $375,000 in costs by Justice McLean.
In his costs analysis, Justice McLean noted that although various
offers were made, there was no binding Rule 49 Offer to Settle.
However, various 'offers' were exchanged. The Defendants
made an offer, dated September 11, 2015, to settle the
Plaintiffs' claim for $2,150,000 inclusive of all damages,
prejudgment interest, and costs. The offer did not request any
assignment of the future care and cost. The Defendants argued that,
if the Plaintiffs had accepted that offer, they would have been
substantially better off. Conversely, the Plaintiffs argued that
the Defendant's offer did not exceed the jury's
The Plaintiffs later claimed that they did, in fact, accept this
offer of September 15, 2015. However, they then filed a new claim
against the defendant's insurers for breach of duty of good
faith. In starting the new claim, the Plaintiffs stated that they
did not intend to settle all matters and the offer of September 15
did not settle the mala fide claim against the insurance company.
Then, the plaintiffs brought a motion to enforce settlement before
In hearing this motion, Justice Hackland noted that this new
claim had taken the Defendants by surprise. The Plaintiffs also did
not advise the Defendants of the new claim. In issuing the new
claim after attempting to enforce the offer, the Court was of the
view that the Plaintiffs engaged in "sharp practice" and
considered this a trick. The Court also confirmed that all offers
had been made on the basis that they settled all outstanding
matters between parties. The Plaintiffs subsequently withdrew their
In considering the factors under Rule 57.01(1) of the Rules of
Civil Procedure, Justice McLean looked at the conduct of the
parties throughout the trial. He noted that the Plaintiffs conduct
extended the proceedings. For example, by conducting further
discoveries in the middle of trial (which was the result of them
changing their mind about calling the plaintiff to testify) and by
commencing the motion before Justice Hackland (where it was
acknowledged that this motion delayed the matter considerably and
caused inconvenience to the jury). He also noted counsel's
failure to comply with the schedule issued by the Case Management
Judge and the last minute decision to have Ms. Carroll provide
evidence, which he stated contributed to the extension of
proceedings. He stated that this behavior by Plaintiff's
counsel should be sanctioned. Therefore, costs were awarded to the
Plaintiffs in the amount of $375,000.
The Court will consider the conduct of the parties and the size
of the damage award resulting from trial, in comparison with the
offers made. In this case, for example, Justice McLean found the
plaintiff's costs were high given that the award obtained at
trial was not much more significant than the offer made by the
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