January 02, 2020, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Elderly Woman Slips and Falls on Walkway at Nursing Home - Przyk v. Hamilton Retirement Group Ltd., 2019 ONSC 7498 (CanLII)
Date of Decision: December 24, 2019
Heard Before: A.C.R. Whitten, J.
SUPERIOR COURT OF JUSTICE
Mr. Przyk was an elderly resident at the defendant retirement home when had a modest slip and fall accident in late summer on a sidewalk between one exit of the home and the main entrance. There were injuries. There was some variation between what the plaintiff attested to and what the manager of the home said the plaintiff told her as to what had happened.
A Statement of Claim filed on Ms. Przyk’s behalf set out allegations of negligence on the part of the home on the basis set out in the Occupiers Liability Act. The usual boilerplate claim for a million dollars was sought for damages.
The plaintiff open to resolve the matter throughout the course of litigation however, adjusters and counsel for the home, members of the in-house legal department of Aviva, resolutely put forth a negative proposal of no damages nor costs despite efforts at resolution attempts.
The two sides did agree that damages would be fixed at $75,000. Therefore, the trial would be confined to the issue of liability.
The case for the plaintiff was well-presented. It emerged that the because of the “heaving” of there were several elevation differences between the concrete slabs, some of which would have been a cause for concern for a municipal sidewalk. There were also drill holes with filler that could have contributed to the fall.
Experts for the defendant home testified as to the nature of the human gait and the unlikelihood given the dimensions of the filling holes and the sandals that unforeseen traction could have occurred.
Neither side could state with any certainty what the state of the sidewalk was back in August of 2015 when the slip and fall occurred.
Justice Whitten found the plaintiff credible and straightforward.
Applying the principles enumerated in Rule 57.01:
(1) Should the defendant receive any costs? And
(2), if so, in what amount?
Justice Whitten reviewed the general principles of the law noting that in DUCA Financial Services Credit Union Ltd. v. Bozzo, 2010 ONSC 4601 (CanLII), at paragraph 5 it is stated:
In Ontario, the normative approach is first, that costs follow the event, premised upon a two-way, or loser pay, costs approach; second, that costs are awarded on a partial indemnity basis; and third, that costs are payable forthwith, i.e. within 30 days. Discretion can, of course, be exercised in exceptional circumstances to depart from any one or more of these norms.
The Courts of Justice Act provides that the costs of and incidental to a proceeding are in the discretion of the court, and the court can decide by whom and to what extent the costs should be paid. As with any discretion, it should be exercised fairly and reasonably.
Rule 57.01 sets out the general principles to be applied. The preamble to the rule invites a court to consider the results of any written offer.
Counsel for the plaintiff asserts that generally the defence played “hardball” in that Aviva, its adjusters and counsel, never made any effort to resolve this matter, aside from communications and offers to the effect that the plaintiff walk away. Essentially that meant the plaintiff had no choice but to push on to trial.
The Justice noted that both sides treated this particular case seriously. Engineers and a biomechanical engineer were witnesses. This was not a case solely dependent on upon the evidence of the parties.
Modest complainants are always at the mercy of the economics of litigation. This could be characterized as a “David and Goliath” situation. Access to justice could be threatened by the resources of the opposing side.
Based on evidence submitted Justice Whitten noted that one detects a certain arrogance in Aviva’s public communications. Size of the insurance market is not inconsequential. Insurers are answerable to their shareholders. Playing hardball with the modest litigant may indeed be profitable, but that does not mean that the modest litigant should have a field day or that the insurer be vulnerable to frivolous claims.
Justice Whitten concluded that he was of the view that there should be no order as to costs. In other words, these parties should bear their own costs. Given this finding, it is unnecessary to deal with the specific complaints as to the quantum of the cost.