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Ms. Przyk did not win her lawsuit against her retirement home, where she slipped and fell on ice, but the court has decided she does not have to pay their legal expenses because her claim brought up an important and novel issue: liability in eldercare. In so doing, the Court of Appeal sends a clear message about what is and is not a relevant factor when considering costs.

The retirement home, The Court on Rushmore, is insured by Aviva, a multinational insurance company. Aviva aggressively fought against the lawsuit and won the case. Nevertheless, the trial judge decided Ms. Przyk was not on the hook for the defendant’s legal expenses. While the Court of Appeal agreed with the original decision, it found that the trial judge made a number of significant errors that have implications for future costs decisions.

The trial judge gave three reasons for not awarding Aviva costs. First, the trial judge focused on Aviva’s position as a large insurer and its alleged reputation to play “hardball” in other actions. Second, the disproportionate resources that Aviva has to spend on such litigation creates a David and Goliath situation and the judge found that access to justice could be threatened by the resources of the opposing side.

The Court of Appeal agreed with Aviva that these two reasons were not relevant factors; the trial judge’s comments about Aviva having a social responsibility because it is a large market shareholder were beside the point. What mattered was that there was no evidence that Aviva had acted unreasonably in taking this particular case to trial. The Court of Appeal went further on this issue, holding that the trial judge erred in considering the “hardball” position taken by Aviva in other cases when assessing costs in this particular case. Aviva’s earlier actions have no bearing on Ms. Przyk’s case.

Despite accepting these arguments, it found that the trial judge’s third reason for not awarding Aviva costs was sound and so the costs decision was upheld. The trial judge categorized this matter, which at its heart is about occupiers’ liability, as being about the novel field of eldercare. The case’s importance goes beyond the two parties.

This case reminds both the bench and the bar that when judging who must pay the costs for a lawsuit, the deciding factor should be the particular matter at hand—not generalizations about how a particular insurer has acted in unrelated actions nor the resources available to the litigant. It’s a pricey victory for Aviva, but one that sets a precedent legitimizing insurance giants’ aggressive response to modest claims

Case: Przyk v Hamilton Retirement Group Ltd., 2021 ONCA 267

The trial judge categorized this matter, which at its heart is about occupiers’ liability, as being about the novel field of eldercare.