Many people rely on insurance coverage in the event of a personal injury, including those related to motor vehicle accidents and slips & falls. Following an accident, of particular importance to many is ensuring that their health and medical needs are appropriately treated to determine whether their injuries will prevent them from returning to work. If an injury results in income loss, or other losses, it is important to work with a trusted personal injury lawyer in order to ensure that your injuries and losses are clearly communicated in order to recover maximum financial compensation. However, a recent decision from the Ontario Superior Court of justice shows how an injured plaintiff can find themselves in the unenviable position of being asked to pay back compensation and benefits.

Jury finds mind not catastrophically injured after receiving insurance payout

In Co-operators General Insurance v Doobay, the defendant had claimed income replacement benefits, in addition to other statutory accident benefits, from the plaintiff insurer. The payments were issued on May 14, 2016, however, the insurer later became suspicious of the defendant’s injuries and took the matter to trial where they were wholly successful. The insurer sought to collect any money paid to the defendant that should not have been, in addition to costs. On the other hand, the defendant argued that costs should be limited due to his lack of financial means.

The Court took the time to analyze whether the defendant’s stated inability to pay should be considered when awarding costs. The Court also considered whether the defendant’s conduct displayed throughout the litigation process was sufficient to warrant costs to the insurer.

Defendant’s purported inability to pay costs

The defendant referred to a 2022 decision from the Ontario Superior Court of Justice in which the Court held that there was no sense in awarding costs against a plaintiff who had been unsuccessful at trial and did not have the financial means to pay costs. In that case, the Court found the individual did not have sufficient means to pay costs and was unlikely to be able to pay in the future. However, the Court referred to a 2017 decision in which it previously stated that such cases resulting in this type of outcome should be few and far between.

In the case at hand, the Court noted that surveillance on the defendant suggested that he owned a home and a rental property. This prompted the Court to inquire into what happened to these significant assets.

How do courts determine costs?

A costs award is made at the discretion of the Court after considering several factors, including, but not limited to:

  • offers to settle;
  • reasonable expectations of the unsuccessful party; and
  • complexity and importance of the issues.

Ultimately, a costs award should be fair and reasonable rather than being an exact measure of actual costs.

The Court looked at some of the factors it listed, starting with offers to settle by the insurer. The insurer originally made an offer to settle the costs proceedings based on a payment of $10,005. At trial, they ultimately beat the offer because a jury awarded them $60,000. The Court wrote that in most cases this would entitle them to costs on a substantial indemnity basis. In the meantime, the defendant made no formal offers to settle, rejecting one of $50,000 by the insurer.

Surveillance footage shows inconsistencies in defendant’s injuries

The Court noted that an offer to settle by the plaintiff that ends up being less than what is awarded at trial generally entitles the plaintiff to substantial indemnity costs from the date the offer was made. In this case, the Court found that not only did the plaintiff reject several offers to settle, but he also pursued a meritless claim. At trial, the jury did not find him to be a credible witness, as surveillance video showed him using his arm in a manner which he told the insurance company he was prevented from doing due to his injury. Further, the defendant told medical assessors he was living in a severely limited capacity, however, this was contradicted through surveillance footage.

The Court was therefore satisfied, upon considering all the relevant factors, that there was little reason to deny awarding costs to the insurer, other than matters related to pre-trial work, which occurred before any offers to settle were made.

Ultimately, the Court ordered the defendant to pay $135,400 to the insurer for costs.

The Personal Injury Lawyers at Tierney Stauffer LLP Position Clients for Maximum Compensation Recovery

An accident resulting in a serious personal injury can be a traumatic and life-altering experience. Aside from impacting one’s daily living activities, social routine, and employment schedule, managing a personal injury claim can add to feelings of uncertainty and isolation. The experienced personal injury lawyers at Tierney Stauffer LLP focus on claim management to allow injured individuals to prioritize their health, wellness and recovery. Our team has over 35 years of experience of providing clients with the individualized approach they need in order to position them for the best possible resolution. We are a large team, spread across various convenient locations, that strives to cultivate a cohesive and client-centred approach to all personal injury claims. Call us at 1-888-799-8057 or contact us online to schedule a free consultation to discuss your potential injury claim.


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