Ever heard of the Victims’ Bill of Rights? Neither had counsel for the plaintiff in Pilon v. Janveaux, an action arising out of a 1993 MVA. One of the provisions in that Act can have a big effect on awards of costs in civil suits. It ended up not doing so here, but you should be aware of what can happen.
In this case, the defendant driver was convicted of impaired driving causing bodily harm. Following the trial of the ensuing civil action brought by an injured passenger, the judge ordered that the plaintiff recover partial indemnity costs up to a certain date. At some point, plaintiff’s counsel became aware of s. 4(6) of the Victims’ Bill of Rights, 1995, an Ontario statute which says:
A judge who makes an order for costs in favour of a victim shall make the order on a solicitor and client basis, unless the judge considers that to do so would not be in the interests of justice.
Once he had learned of this provision, plaintiff’s counsel argued that his client was a “victim”, within the meaning of the Act and was entitled to costs on a “substantial indemnity” scale instead of the lower, “partial indemnity” scale. (“Substantial indemnity” has replaced the “solicitor and client” scale referred to in the section.)
The court ruled on the costs issue on September 3, 2004. The decision can be found at http://www.canlii.org/on/cas/onsc/2004/2004onsc12125.html . In the circumstances of this case (where the injured plaintiff had been a willing passenger of the impaired defendant), the judge declined to apply the section. In other circumstances though, a court would almost certainly give effect to this statutory provision and award the higher scale of costs.
The Act defines “victim” as a person who, as a result of the commission of a crime by another, suffers emotional or physical harm, loss of or damage to property or economic harm and “crime” as an offence under the Criminal Code. So, for example, a conviction on a charge under the Highway Traffic Act would not trigger the Victims’ Bill of Rights.
So, this statutory provision should be kept in mind in any case in which the defendant has been convicted of a criminal charge in connection with the incident giving rise to the litigation.