Court Comes Down Hard on Defendant Who Sought Costs After Being Given the Opportunity to be Released on a Without Cost Basis. The Defendant in this case was the Ministry of Transportation (“MTO”) who was added as a third party by the defendant in a motor vehicle accident case, and shortly after the MTO provided answers to undertakings and some questions taken under advisement, the defendant was satisfied that they could not make out a case against the MTO, and offered to have them released, but the MTO insisted on costs, which by the time of the motion were hovering in the $30,000.00 range. The court weighed two conflicting principles. The first being the legal right for litigants to get their costs when claims against them are abandoned. The second being an access to justice issue. In this regard, the court acknowledged the importance of preserving the general practice in motor vehicle accident cases (as reflected in other cases) where “after examinations for discovery are held, plaintiff’s counsel examines the evidence carefully to determine the viability of their case against each named defendant and they consent to a dismissal of the action against any defendant against whom they do not have a viable claim. The Defendant’s insurer normally consents to a dismissal without costs.” Given that the defendant did just that, and acted promptly after getting answers from the MTO following the discoveries, the court said the following:
“ I find it was not reasonable for the MTO to insist on its costs in this instance. There was nothing frivolous or vexatious about (the defendant’s) third party claim against the MTO. Nor was the third party claim pursued in bad faith. Being brought into a lawsuit in instances where road conditions may have played a factor is eminently reasonable. Awarding costs to the MTO to assuage its frustration could serve to cast a chill over future claims against it.”
The sting for the MTO was that not only was it not awarded costs of the action, it had to pay the defendant costs of the motion fixed in the sum of just under $8,000.00.
This case provides good guidance and promotes cooperation, all the while assisting litigants gain access to justice, provided everyone acts reasonably and with due dispatch. The outcome for the defendant could have been much worse, for example, had the defendant’s decision to release the MTO was done at the 11th hour or at the courtroom steps. In that case, the result could be very different.
Nesbitt v. Jeffery, 2022 ONSC 144 (CanLII)
https://www.canlii.org/en/on/onsc/doc/2022/2022onsc144/2022onsc144.html