Przyk v. Hamilton Retirement Group Ltd. 2021 Ont CA
The jury held against the plaintiff on a slip and fall action. However, the judge refused to grant costs to the defendant (in effect its insurer) for three reasons: (i) the insurer was big and the plaintiff was small; it was a David and Goliath situation, (ii) the insurer had refused to make any offer at all to settle the action and was therefore arrogant, and (iii) the action, which had required expert evidence illustrated the need that the law of negligence had to adapt to the growing area of elder care. The insurer appealed, not because it did not get its costs. Rather, it could not let the first two reasons stand as precedents. The Court of Appeal dismissed the appeal because it held that the judge had the discretion to refuse costs when it involved a novel issue of public interest. However, the court held that the first two reasons were improper. First, the plaintiff was not denied access to justice; she took her case to trial and was represented by experienced counsel. Nothing supported the view that her case was prejudiced by a mismatch of resources. Second, it is an error in principle to rely on the failure of a successful defendant to have offered a payment to an unsuccessful plaintiff as a ground to deny costs.
Written by Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.