Less than a month before a scheduled trial, the plaintiff in an MVA personal injury action accepted an offer to settle from the statutory third party for $85,000 plus interest, disbursements, and costs to be agreed upon or assessed. The parties were unable to agree on costs and the plaintiff brought a motion for a determination by the court. One issue was whether the plaintiff was entitled to recover costs associated with two AB arbitrations and a CPP dispute. Justice Ramsay held that neither the AB nor the CPP costs were recoverable. While costs could be recovered for AB-related arbitrations, the plaintiff failed to provide evidence supporting any of the factors set out by the Court of Appeal in Cadieux. Justice Ramsay also found that the recovery of more than $1 million in SABS interest was a factor weighing against requiring the statutory third party in the MVA tort action to pay for AB-related costs.
With respect to the CPP dispute, Justice Ramsay held that CPP litigation costs are not recoverable in a MVA tort action because the Insurance Act does not impose any statutory requirement on the plaintiff to apply for or dispute CPP benefits.