A trial judge has the discretion to award or not to award costs.
However, the decision regarding costs can be set aside on appeal,
if there has been an error in principle or if the costs award is
wrong.
In Przyk v. Hamilton Retirement Group
Ltd., leave was obtained from the Court of Appeal and an
appeal launched to set aside the trial decision on costs.
The respondent, Przyk, slipped and fell on a sidewalk at the
retirement home where she resided.
She sued the appellant, Rushdale, the owner of the retirement
home, for negligence and breach of the Occupiers'
Liability Act. Damages were agreed to in advance of the
trial.
At trial, the jury found no liability on Rushdale
and the action was dismissed. Rushdale, as the
successful party, sought an award of partial indemnity costs and
was denied for 3 reasons by the trial judge:
