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Barlow v Citadel General Assurance Company, 2008 CanLII 3215 (ON SC)


Claim for long-term disability benefits. D (insurance co) paid benefits for a time then stopped. D decided P was no longer disabled. At trial found P was entitled to payments of $4000 per month. P requested to add claim for aggravated and punitive damages. Trial judge asked to fix costs. P’s counsel seeks 50,000 premium bc he took case on contingency basis. P had made 2 offers to settle. D’s position – premiums are no longer available for lawyers who take cases on contingency basis (Walker v Ritchie)


What is the proper amount of damages to award P?


Premiums are no longer available for lawyers who take cases on contingency basis (Walker v Ritchie).
Take into account unnecessary actions by successful party when calculating costs


Risk of non-payment is not a relevant factor in determining costs (Walker).

Will not consider costs that arose from motions before the trial
**If P wanted $ for these motions should have applied to the motion judge

Said that some of the hours counsel claimed were excessive

Costs should reflect what the court feels is fair and reasonable (Zesta)
**Principle of proportionality is essential
**This case – it would be excessive to award approx 2 and a half times more in costs than the P recovered at trial

Action was unnecessarily complicated by the P

Judge may take into account an offer to settle when assessing damages

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