What is the test for determining success in a personal injury action?

[31] Consideration of success is the starting point in determining costs. However, any attempt to determine a “winner” or “loser” in a settlement or in the case management process is, in most cases, complex if not impossible. Cases are resolved in whole or in part for many reasons. See Sims-Howarth v. Bilcliffe, 2000 CarswellOnt 299 (S.C.J.), para. 1. Thus, for good reason, judges are reluctant to make an order as to costs when the parties settle the merits to their dispute.

[32] Further, if a successful party has behaved unreasonably “in relation to the issues from the time they arose (Rule 24(5),” then pursuant to Rule 24(4), they may be “deprived of all or part of the [their]costs or ordered to pay all or part of the unsuccessful party’s costs.” Behaviour under Rule 24(5) is not restricted to behaviour associated with offers to settle. See Family Law Rules, Rule 24(4), (5) and 11(b); Lawson v. Lawson, 2004 CarswellOnt 3154 (S.C.J.), para. 44.