The Ontario Court of Appeal dismissed the appeal of a trial judge’s finding that the Ministry of Health and Long-term Care was not jointly and severally liable for the $1,055,000 in costs awarded against the Plaintiffs because the Ministry did not attend or participate in the trial in any meaningful way despite having pursued a subrogated claim against the Defendant Insurers

Dibattista v. Wawanesa Mutual Insurance Co., [2006] O.J. No. 3960, Ontario Court of Appeal

The Defendants argued that the Ministry knowingly participated in a trial fraught with risk and was a full participant in the litigation. The Court noted that the Ministry did no more than forward a few pieces of correspondence and did not attend or participate in the trial in any way. Accordingly, the Trial Judge could not have found that the Ministry was an equal partner in the litigation and to assess costs against the Ministry in the manner requested by the Defendants would be unfair and unreasonable. The Court of Appeal therefore dismissed the appeal.

This was an appeal by the Defendant, Wawanesa Mutual Insurance Co. (“Wawanesa”) from a cost award after a jury dismissed the Plaintiff’s claim. The Plaintiff had claimed against its insurer, Wawanesa, for negligent, unfair and deceptive acts and practices in the adjustment of their insurance claim following a fire that destroyed their home. The Ministry of Health and Long-term Care (the “Ministry”) had brought a subrogated claim against the Defendants for the cost of insured services received by the Plaintiffs following the fire; however, the claim was withdrawn half-way through the trial. The trial judge fixed Wawanesa’s costs at $565,000 and those of the remaining Defendants at $490,000. While the Defendants had sought to have costs awarded jointly and severally against the Plaintiffs and the Ministry, the trial judge held that only the adult Plaintiffs were liable for the Defendants’ costs.

The issue was whether the Ministry should pay the costs of the successful Defendants. The Ministry had joined the action to pursue their subrogated interest for $8,057 that represented health benefits received by the Plaintiffs following the fire. The Ministry did not attend at trial nor did it participate in any way.

To stay current with the new case law and emerging legal issues in this area, subscribe here.