Full Decision
Court finds adverse costs insurance an “access to justice” issue and a recoverable disbursement.
This cost endorsement follows the settlement of a personal injury action ten days before the start of a scheduled three week trial. The parties agreed on the Plaintiffs’ damages of $75,000 and that the issue of costs and disbursements would be assessed by the Court.
Justice Tausendfreund decided the matter and was asked to consider whether the insurance premium totalling $1,458 the Plaintiffs paid to obtain $100,000 coverage for possible adverse costs insurance was a compensable disbursement. The Defendants argued that the law was settled and that such insurance premiums were not recoverable disbursements. His Honour stated the following at paragraph 23:
…I disagree. There are conflicting opinions on this issue. Milanetti, J., Reilly, J. and Firestone, J. respectively in Markovic v. Richards, 2015 ONSC 6983, Foster v. Durkin, 2016 ONSC 684 and Valentine v. Rodriguez-Elizalde, 2016 ONSC 6395 each held that the premium for adverse costs insurance is not to be reimbursed by the Defendants as a compensable disbursement. I then turn to Armstrong v. Lakeridge Resort Ltd., 2017 ONSC 6565. Salmers, J. in that decision held that the costs insurance premium was a compensable disbursement. Salmers, J. noted at para 21:
“Without costs insurance, the fear of a very large adverse costs award would cause many Plaintiffs of modest means to be afraid to pursue meritorious claims. It is in the interests of justice that Plaintiffs be able to pursue meritorious claims without fear of a potentially devastating adverse costs award.
His Honour went on to find that adverse costs insurance is an “access to justice” issue and for that reason, it is a compensable disbursement to be included as a cost obligation payable to the Plaintiffs. His Honour assessed the Plaintiff costs at $75,000 plus HST and disbursements fixed at $29,070 including the $1,458 insurance premium.
