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Recent Cost Award against Unsuccessful Plaintiff

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Recent Cost Award against Unsuccessful Plaintiff

Posted January 2, 2014

A recent case out of the Ontario Superior Court highlights the risk that plaintiffs face if they are unsuccessful in their claim for damages.

In the case of Berg v. Loblaw Properties Limited, 2013 ONSC 4803, Mrs. Berg sustained serious injuries when she fell at a Zehrs store in Woodstock, Ontario.  She brought suit against the store and so too did her daughter, Ms. McDonald, who provided her mother with care while she was recuperating from her injuries.

After a four week trial, the jury determined that the store was not liable for Mrs. Berg’s injuries.  The defendant store submitted a cost outline claiming that it should be reimbursed for the legal fees it incurred in the amount of $140,351.65.  In doing so, the defendant relied on a fundamental principle of civil litigation: that a successful party is entitled to be at least partly indemnified for its costs.

In the end the court awarded the defendants the sum of $40,000 in costs against Mrs. Berg.  The court made two pronouncements of particular interest.  Firstly, the court stated that costs should not be routinely ordered against a Family Law Act claimant such as Ms. McDonald.  Secondly, the court stated that while impecuniousity (inability to pay) would not preclude a court from making a cost award it is nevertheless a factor that a court will usually consider when deciding the issue of costs, particularly where a cost award may inflict severe financial hardship on a party.

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