Przyk v. Hamilton Retirement Group Ltd., 2019 ONSC 7498
Full Decision
Aviva denied costs after successful trial because of hardball approach.
This slip and fall action proceeded to trial on liability alone after the parties agreed to fixing damages at $75,000. Aviva was wholly successful at trial where the jury found no negligence on the part of the defendant.
In considering costs, the Court agreed with Plaintiff’s counsel that defence played hardball by only making an offer to walk away from the claim. It noted Aviva’s 15% market share and its defensible program which could be characterized as a “David and Goliath” situation threatening access to justice. Reference was also made to a job hiring advertisement posted by Aviva in which one aspect of the job description was to “work closely with and attend mediations with our legal partners or delegated authority program files to ensure a consistent approach and message is delivered. The successful candidate will be heavily involved in with Aviva’s various defensible programs, and drive a consistent message with judges, mediators, and counsel surrounding our litigation files.”
In denying Aviva costs, the Court said:
[31] From reading the employment advertising for Aviva concerning the sending a message to judges, mediators, and counsel, one detects a certain arrogance. 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.[32] Being a large market shareholder is not without social responsibility, size should not be wielded to oppress deserving litigants as that would encroach upon the broader social interest of access to justice.[33] Aviva with its approach is at risk of allegations of playing hardball. In some circumstances that approach may result in no costs. In a way, that is a cost of doing business in such a fashion.