Reimbursement of Legal Costs Re: Failure to Mediate

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The Estate of Diane Tsialtas v. Munroe, 2022 ONSC 1207

In a previous blog, we discussed the concept of costs: the monies that a court orders the party that loses the case to pay to the winning party.

In the recent Superior Court decision, The Estate of Diane Tsialtas v Munroe, the plaintiffs ultimately accepted the defendant’s offer to settle the matter for $253,000.00, exclusive of costs and disbursements. It has been decided by the courts that the judge determines the amount of costs to be awarded. In this case, the plaintiffs sought $137,000.00 in costs in addition to the $20,000 spent on disbursements.

This action arises from a 2014 accident which was followed by examinations for discovery, private mediation, and two pre-trial conferences. Throughout the litigation, the plaintiffs suggested early negotiations to settle the matter. They advised that as litigation went on, their costs were increasing.

At the time of settlement, the plaintiffs adjusted their time spent to be a figure approved by the court, who found that the time spent and the hourly rate assigned was appropriate given the proceedings. Moreover, in personal injury matters, it is common for plaintiff counsel to spend more time than the defence in investigating the case and obtaining the appropriate evidence to advance their client’s case.

When the Honourable Justice Daley reviewed the costs submissions by the plaintiff, he found that the rates were reasonable as to the results achieved. Further, he found that the defendant’s failure to mediate at an earlier stage of the proceedings contributed to the lengthening of the proceeding, which is contrary to the Rules of Civil Procedure in which a judge can ‘consider the conduct of any party that tended to lengthen unnecessarily the duration of the proceedings’ when awarding costs.

It was the responsibility of the defence to recognize that the file was “ripe” and that there were opportunities to settle the modest claims of the plaintiff, rather than allow the action to proceed indefinitely, amassing costs. The plaintiffs advised the defence at mediation in 2019 and at pre-trial in 2020 the fees incurred thus far, however, the action did not resolve until 2021. Ignoring requests for further mediation and resolution should not impact a party’s entitlement to reasonable and fair costs.

In this case, the costs of the plaintiff’s counsel would not have been so large had the defence agreed to their suggestions of early negotiation.

At JEWELL RADIMISIS JORGE LLP, you can be assured that you have access to justice through our diligent efforts to reach a maximal resolution for your claim, in a reasonable time.

If you or a loved one have been injured in a fall or motor vehicle collision, contact us at JEWELL RADIMISIS JORGE LLP and a member of our team will be happy to assist you.

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