sept. 9. 2020

Losing at Trial: $100,000 to be Paid by Plaintiffs to Defendant (insurer)

McNamee v. Oickle, 2020 ONSC 5078 (CanLII)

Losing your lawsuit has consequences. In this new case, losing at Trial resulted in the Plaintiffs (husband and wife) jointly being responsible for paying costs of $100,000 to the Defendant (which is the insurance company).

It is unknown how many days at Trial but it seems like it took the greater part of a month:

[2] Mr. McNamee seeks damages as a result of the motor vehicle accident that occurred on February 11, 2014. The trial proceeded with jury selection, opening statements and evidence called between January 13, 2020 and February 14, 2020. While the jury was deliberating, the Defendant brought this “threshold” motion. The evidence relied upon in support of this motion was heard by me at trial. While liability was not admitted. it was not in dispute. The seriousness and duration of Mr. McNamee’s injuries were the major issues.[1]

This Costs Decision

For this costs decision, the parameters were as follows:

  1. Plaintiffs claim their costs from the MVA (Feb 2014) until Dec 23/2019, when the defendant gave an offer to settle;
  2. The Defendant is entitled to its costs from Dec/2019 to Trial;
  3. The Defendant offered $350,000 for damages / interest, plus costs, to be assessed; and
  4. The Jury award at Trial was $61,000 for both plaintiffs together.

Factors Considered in Awarding Costs

The Court methodically went through the factors for awarding costs, as found in Rule 57.01 (1) as follows:

(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;

(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;

(a) the amount claimed and the amount recovered in the proceeding;

(b) the apportionment of liability;

(c) the complexity of the proceeding;

(d) the importance of the issues;

(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;

(f) whether any step in the proceeding was,

(i) improper, vexatious or unnecessary, or

(ii) taken through negligence, mistake or excessive caution;

(g) a party’s denial of or refusal to admit anything that should have been admitted;

(h) whether it is appropriate to award any costs or more than one set of costs where a party,

(i) commenced separate proceedings for claims that should have been made in one proceeding, or

(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and

(i) any other matter relevant to the question of costs.

Decision on Costs - $100,000 Payable by Plaintiffs to Defendant

In my view, the Plaintiffs are quite fortunate here to have these figures awarded by Mr. Justice Beaudoin:


[48] I conclude that this defendant is entitled to a level of indemnity for beating its offer by a very wide margin. I am aware that this was a devastating loss to the plaintiffs. They nevertheless pursued an aggressive litigation strategy that failed miserably. I fix the plaintiffs’ costs in the all-inclusive amount of $100,000 and the defendant’s costs at $200,000 inclusive of disbursements and HST.

[49] There will be an order that the plaintiffs pay the net costs of $100,000 to the defendant less the amount of their judgment.

In evaluating the competing Offers to Settle, the Trial Judge noted that the Defendant’s offer to settle was much more generous (i.e. upwards of $700,000 all-inclusive) that the ultimate Trial result:

[20] The plaintiffs’ first Offer to Settle was on August 3, 2018 in the amount of $996,600 for damages and interest, plus costs. There was a subsequent offer on July 15, 2019 in the amount of $700,000 for damages and interest, plus costs, which offer was withdrawn. There was a final offer on December 4, 2019 in the amount of $900,000 for damages and interest, plus costs.

[21] If I agree with the plaintiffs’ claim for costs of approximately $350,000, the total value of the defendant’s offer is over $700,000. This was a genuine offer.

[22] Despite significant causation issues apparent in each plaintiff's case, the plaintiffs approached this trial as if there was no risk of an adverse outcome.

The position of the parties, at this Costs hearing, was as follows:

  • Position of the Parties

    [8] The plaintiffs acknowledge that they received a judgment far less favorable than the defendant’s offer. They claim their partial indemnity costs to December 23, 2019 and recognize that the defendant is entitled to her partial indemnity costs from that date.

    [9] The plaintiffs claim partial indemnity costs in the total amount of $350,617.30. They cite case law where plaintiffs have recovered costs in excess of the amount of their judgment.

    [10] The defendant seeks her partial indemnity costs and disbursements from December 23, 2019, in the amount of $212,633.15 inclusive of HST. The defendant submits that the judgment, interest and any reasonable award of costs made to the plaintiffs, if any, should be entirely set off by the defendant’s claim for costs with the defendant receiving an order for payment of her costs from the plaintiffs for the balance.

    It is noted that the Defendant’s costs claims, for approximately 25 days of Trial preparation and then Trial comes out to $212,000, inclusive of disbursements and tax. But generously there were 52 days approximately here to assess, which works out to approximately $4,000/day (including all weekends).

    The Trial Judge’s comment in para 48 – i.e. Plaintiffs pursued an aggressive litigation strategy that failed miserably – includes the interim rulings which limited the Plaintiffs strategy, at Trial:

    • McNamee v. Oickle, 2020 ONSC 432 (CanLII), <>, ruling limiting number of experts the Plaintiffs could call; and
    • McNamee v. Oickle, 2020 ONSC 1077 (CanLII), <>, ruling on questions to be put to the Jury, greatly limiting what heads of damages the Jury could be asked to award damages on.

    Finally, if the Plaintiffs have ATE (adverse ‘after the event’ insurance) then typical coverage is $100,000 in Canada. It is unknown whether the Plaintiffs have ATE insurance here.

  • [1] This is from the Threshold Motion ruling on Catharine’s case: McNamee v. Oickle, 2020 ONSC 2371 (CanLII), <>