Brophy v. Harrison, 2019 ONSC 4377
Full Decision
In Brophy v. Harrison, the parties differed significantly regarding the suggested range of damages at the trial of a motor vehicle action, with the Plaintiff suggesting damages around the $1,000,000 range and the Defendants suggesting a maximum of $10,000. After a 10-day jury trial, the Plaintiff was awarded $62,628.75 in the damages. Even with this relatively modest award, the Court awarded the Plaintiff $275,456.60 in costs and disbursements.
Throughout the course of the litigation, the Defendants did not make any offers to settle. There was not even an offer for a dismissal without costs. The Court commented that this “effectively left the plaintiff with no choice but to proceed to trial to seek recovery for her injuries” (at paragraph 6). The Plaintiff was ultimately successful on both liability and damages.
Following the trial of this action, the Plaintiff sought over $300,000 in costs, disbursements and HST. By contrast, the Defendants argued that the Plaintiff should be awarded $70,000.
On the issue of costs, the Defendants argued for proportionality between the judgment and costs awarded. This argument was, however, rejected by the Court. Justice Casullo reasoned that “limiting the losing party’s exposure to costs proportionate to the size of the claim would encourage those resisting legitimate but modest claims to take unreasonable positions” (at paragraph 25). The Court also commented that the Defendant had taken a “hard-ball approach”, and therefore, “must accept the consequences of that decision” (at paragraph 30).
Ultimately, this decision stands for the proposition that even a modest judgment can result in significant cost consequences for unsuccessful parties. The costs endorsement in Brophy v. Harrison serves as a reminder for all parties to consider cost consequences when deciding whether to litigate a case and encourages parties to make serious efforts to explore the early resolution of claims.