In a somewhat surprising decision, the Divisional Court has denied leave to appeal a trial judge’s refusal to award costs to a successful defendant in a personal injury action.
Dinham v. Brejkaln arose out of a motor vehicle accident. The defendant was found liable for the accident itself and the jury awarded damages of $3,000. But after the jury rendered its decision, the defendant brought a threshold motion, which succeeded. In other words, the trial judge found that the plaintiff had not proved “a permanent impairment of an important physical function as a result of the accident and furthermore that the plaintiff had not proven that his headaches were actually caused by the accident. As a result of these conclusions, the plaintiff was not entitled to any recovery.”
The trial judge also noted that the statutory deductible of $15,000 would have wiped out the $3,000 award of damages.
However, the trial judge exercised his discretion and denied costs to the defendant. His basis for doing so was the fact that the jury had found liability for the accident and had been satisfied that he had suffered some injury.
In today’s decision, the defendant sought leave to appeal the costs ruling to the Divisional Court, but was not successful. Madam Justice Gloria Epstein of that court was not persuaded that the trial judge, Mr. Justice Peter Cumming, had failed to act judicially.
It is hard to understand how a finding of liability or some injury are relevant, when the right to sue for such minor injuries has been taken away by statute (in two ways here: threshold and deductible). Not mentioned in the decision is the fact that even if the award of $3,000 had stood, it would have been within the juriisdiction of the Small Claims Court.
It strikes us as peculiar to hold that a plaintiff is entitled to have a Superior Court trial of such a minor claim, without facing any risk as to costs. In this case though, the evidence indicated that the plaintiff had had a hard life and no apparent resources. These factors undoubtedly played a large part in the result. But to characterize the issue as one of “access to justice”, as Cummings J. did, seems to us to be stretching that notion a bit.