In Dinham v. Brejkaln 2006 CanLII 12713 (leave to appeal denied 2006 CanLII 19942; 2006 CarswellOnt 7199 (Div. Ct)) the plaintiff would have recovered damages and costs but for the statutorily created ‘threshold”. The defendant’s expectation of costs only arose because of the operation of that statute and the court saw fit not to impose such costs upon the plaintiff. However, in denying the successful defendant his costs the trial judge reaffirmed “...that [the defendant] should not be denied costs simply because of the plaintiff’s unfortunate circumstances”.
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