The Court of Appeal upheld a $300,000 costs award arising from a jury trial that produced a net recovery of $16,160.50 for the plaintiff. The panel emphasized deference to a trial judge’s discretionary costs assessment and confirmed that proportionality is a factor but not determinative. The trial judge had considered complexity, extensive expert evidence, and the defendant insurer’s “hardball” posture, which included offering only a without-costs dismissal shortly before trial and never making a monetary Rule 49 offer.
The Court held that a defendant who elects not to make a monetary offer must accept the risk that proportionality will not reduce costs where the plaintiff achieves some success. The Court also noted that, read harmoniously with the Rules of Civil Procedure, s. 258.5 of the Insurance Act supports the view that proportionality should not routinely shield an insurer from costs after taking such a posture.