In a case identified by the court as analogous to David and Goliath, the hardball tactics of the insurer deprives it of its costs, despite successfully defending a claim for personal injury.
An elderly Mrs. Przyk tripped and fell in an Ontario retirement home, sustaining injury. Partially due to her age and status as a retiree (lack of a claim for loss of income earning capacity) the claim was modest. Aviva, the insurer for the retirement home, used tactics the court identified as ‘hardball’ refusing to make any form of settlement offer, other than an offer for the elderly claimant to drop her claim and pay her own legal fees.
The claim was well prepared and presented by Mrs. Przyk’s counsel. The court heard expert evidence from both sides with regard to the likelihood of the uneven paving slabs causing a foreseeable hazard. Ultimately, the jury found that Mrs. Przyk had failed to prove her case; she failed to demonstrate that her personal injuries were caused by the retirement home’s negligent failure to maintain a safe walk way.
Once the jury had delivered its verdict the issue of who bears what legal costs is decided by the judge. What caught the attention of the judge was the manner in which the insurer had defended the claim. In particular, counsel for Ms. Przyk had demonstrated, by reference to advertising for recruitment of potential adjusters for Aviva, that one aspect of the job was to “work closely with and attend mediations with our legal partners or delegated authority program files to ensure a consistent approach and message is delivered. The successful candidate will be heavily involved with Aviva’s various defensible programs and drive a consistent message with judges, mediators and counsel surrounding our litigation files.’
This unyielding approach to defending claims by a market leader who has a 15% market share was identified by the court as analogous to a David and Goliath battle.
[32] Being a large market shareholder is not without social responsibility, size should not be wielded to oppress deserving litigants as that would encroach upon the broader social interests of access to justice.
[33] Aviva with its approach is at risk of allegations of playing hardball. In some circumstances that approach may result in no costs. In a way, that is a cost of doing business in such a fashion.
Legal costs are usually awarded to the successful party. This means the party that wins the claim or successfully defends the claim would usually have their legal costs paid by the losing party. Although Przyk v Hamilton Retirement Home Group Ltd; 2019 ONSC 7498 is an Ontario case it should be noted that all Canadian legal jurisdictions leave the question of costs (who has to pay which party’s legal costs) to the discretion of the court. In Pryzk the court expressed its concerns at the manner Aviva chose to defend claims against it by the unusual order for costs.