Back

The Courts of Justice Act, Part 57.03

November 17, 2021

Ontario

,

Canada

Issue

Can a party appeal the deadline for payment of a costs order to make the order payable upon completion of the litigation?

Conclusion

The Ontario cases located on the subject matter discussed judicial discretion in relation to costs in a more general way than merely delaying costs payment. However, the principles and the discussion of discretion and impecuniosity in the cases can provide relevant guidance.

Under Rule 57.03 of the Rules of Civil Procedure, on the hearing of a contested motion, unless the court is satisfied that a different order would be more just, the court shall,

(a) fix the costs of the motion and order them to be paid within 30 days; or

(b) in an exceptional case, refer the costs of the motion for assessment under Rule 58 and order them to be paid within 30 days after assessment.

(2) Where a party fails to pay the costs of a motion as required under subrule (1), the court may dismiss or stay the party’s proceeding, strike out the party’s defence or make such other order as is just. (Rules of Civil Procedure)

Under Rule 60.12 of the Rules of Civil Procedure, where a party fails to comply with an interlocutory order, the court may, in addition to any other sanction provided by the rules,

(a) stay the party’s proceeding;

(b) dismiss the party’s proceeding or strike out the party’s defence; or

(c) make such other order as is just. (Rules of Civil Procedure)

Under section 131 of the Courts of Justice Act, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid. (Courts of Justice Act)

Costs are a matter within the discretion of the judge or master hearing a motion and the court may determine by whom and to what extent costs shall be paid. The court is to take into account the factors under rule 57.01 and make a costs award that is fair and reasonable in the circumstances. The normal rule is that costs of a contested motion are payable by the losing party to the winning party, although the fact that a party is successful does not prevent an award of costs against the winning party. In accordance with rule 57.03(1) the presumptive rule is that costs are fixed by the motions judge or master and payable within 30 days, although a different order may be made if more just. (Burrell v. Regional Municipality of Peel Police Services Board)

Under some authorities, a party's impecuniosity is not a relevant factor in the exercise of a court's discretion in awarding or enforcing costs awards. In particular, impecuniosity will not insulate a party from liability of costs otherwise payable and impecuniosity cannot be used as a justification for failure to obey a court's orders. The policy rationales behind this line of authority are that: (a) a rule based on impecuniosity would present problems of interpretation, evidence, and application and such a rule would be undesirable; (b) and the courts would become powerless to control an impecunious party who could bring and defend motions without fear of any sanction for irresponsibly bringing or resisting interlocutory motions, and, therefore, impecuniosity should not be a factor in awarding or enforcing costs awards. There are, however, authorities that support the proposition that impecuniosity is a relevant factor and may be considered in awarding and in enforcing costs awards including determining when the costs should be payable. The policy rationale behind this competing line of cases that access to justice is a necessary and desirable attribute of the administration of justice and access to justice may be thwarted if the effect of a party's impecuniosity is ignored when the court exercises its discretion to award or enforce a costs award. In most cases, impecuniosity will not be a factor; however, a better approach is more flexible. In the exercise of its discretion, a court can probe the circumstances and assess, what might be called "the procedural good faith" of the party using impecuniosity as his or her excuse for failing to comply with a court order, including a failure to pay costs. Is the person using impecuniosity as a means to avoid his or her responsibilities or in good faith as an apology or explanation for failing to do so? There may be situations where a clearly meritorious case should not be dismissed against an impecunious plaintiff for failing to pay interlocutory costs orders, but given the need of the court to retain control over its process and the legitimacy of its orders, such situations should be the exception and not the norm. Therefore, when faced with a motion to dismiss or stay an action brought by an impecunious plaintiff who has not paid costs awarded on an interlocutory motion, the court retains a discretion to either dismiss or stay the action or allow it to proceed, in other words to “make such order as is just. (Burrell v. Regional Municipality of Peel Police Services Board)

The court has a discretion to take into account the impecuniosity of a litigant in an award of costs and on a motion to dismiss for failure to pay those costs. The court should consider as a relevant factor in the exercise of its discretion the effect on access to justice if costs are sought to be awarded or enforced against an impecunious litigant, but the court is free to then it give it whatever weight it deems appropriate in all of the circumstances, including no weight. Furthermore, although impecuniosity is a relevant factor, it is only one factor. There is not only one party involved in the action – the defendant has rights as well which the court must take into account. It is unfair that the defendants continue to incur substantial costs in compelling the plaintiff to comply with her production and discovery obligations and with court orders, when that plaintiff could, in the absence of sanctions, have carte blanche to ignore orders of the court and to bring, resist and appeal motions with impunity, with no fear of costs consequences by simply pleading impecuniosity at every turn. The court must also take into account the interest of the court in ensuring that its rules and orders are not ignored and retaining some measure of control over a party’s conduct. There must be fairness and a balancing of interests, but clearly a person’s modest means cannot serve as an excuse to play by a different set of procedural rules and ignore orders of the court and the rules of court with impunity. Unreasonable conduct should not be rewarded by denying costs to the innocent defendant or by deferring payment until after trial. (Burrell v. Regional Municipality of Peel Police Services Board)

Among the factors the court should consider in determining what result is just on a motion to dismiss an action against an impecunious litigant for failure to pay a costs award, are the circumstances that led up to the award of costs. For example, were the costs awarded, notwithstanding the plaintiff’s impecuniosity, to deter bad behaviour, such as the flouting of the rules or orders of the court, or were they simply an award of costs against a losing party to a motion brought or resisted in good faith and on reasonable grounds? Clearly, there is a more compelling case for not allowing a litigant to avoid a dismissal or stay of the action for failure to pay costs when the litigant’s behaviour that led to the costs award involved flouting orders of the court and ignoring the rules of the very court to which they claim a right of access. (Burrell v. Regional Municipality of Peel Police Services Board)

In Heu v. Forder six months were allowed to pay costs before the judge would entertain a dismissal. (Burrell v. Regional Municipality of Peel Police Services Board)

For orders of the court to have any meaning they must be enforced. A party should not be able to set up his own impecuniosity as a shield against costs sanctions. To allow that would mean that a plaintiff could bring, resist, or appeal motions with no fear of consequences. (Baksh v. Sun Media (Toronto) Corp.)

The general rule contained in s. 131 of the Courts of Justice Act, R.S.C. 1990, c. C.43, is that costs are in the discretion of the court. The exercise of that discretion should be interfered with on appeal only in limited circumstances. Because of the importance of avoiding a situation in which litigants without means can ignore the rules of the court with impunity, and the distastefulness of creating a rule incapable of consistent application, it would be reasonable to refuse to take into account the impecuniosity of the plaintiff. (Myers v. Metropolitan Toronto Chief of Police)

The simple question is whether there can be a consideration of the paying party’s means in considering the disposition of costs. The answer to this question must be yes where impecuniosity is demonstrated. Any other answer creates a straightjacket which is inconsistent with the discretionary nature of all costs orders. Impecuniosity falls within Rule 57.01: “any other matter relevant to the question of costs.” Whether to consider it as a factor in any particular case remains a matter within the discretion of the judge. (Walsh v. 1124660 Ontario Limited)

There is also case law supporting the view that the individual circumstances of a party are a legitimate concern in exercising discretion as to costs. If costs awards, to be paid by the losing party, reach the level, as they have done in Ontario, that they can bankrupt an ordinary person, never mind an impecunious one, there is a danger that confidence in the justice system will be undermined and it will increasingly be seen, and not without good reason, as a system for business and the wealthy, but not for the mass of people whose tax dollars fund the system. The loser-pay costs system can act as a serious barrier to justice, deterring deserving as well as frivolous cases. Many jurisdictions get along quite well without a “loser pay” system. Perhaps Ontario should become one of them and deter frivolous cases and improper conduct in other ways. (Walsh v. 1124660 Ontario Limited)

Law

Under Rules 57.03 and 60.12 of the Ontario Rules of Civil Procedure, Reg 194, the court is empowered to make any order it considers just on hearing a contested motion or where a party fails to comply with an interlocutory order:

Contested Motion

57.03 (1) On the hearing of a contested motion, unless the court is satisfied that a different order would be more just, the court shall,

(a) fix the costs of the motion and order them to be paid within 30 days; or

(b) in an exceptional case, refer the costs of the motion for assessment under Rule 58 and order them to be paid within 30 days after assessment. O. Reg. 284/01, s. 16.

(2) Where a party fails to pay the costs of a motion as required under subrule (1), the court may dismiss or stay the party’s proceeding, strike out the party’s defence or make such other order as is just.

[...]

Failure to Comply with Interlocutory Order

60.12 Where a party fails to comply with an interlocutory order, the court may, in addition to any other sanction provided by these rules,

(a) stay the party’s proceeding;

(b) dismiss the party’s proceeding or strike out the party’s defence; or

(c) make such other order as is just.

Under section 131 of the Courts of Justice Act, RSO 1990, c C.43, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid:

Costs

131 (1) Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.

In Burrell v. Regional Municipality of Peel Police Services Board, 2007 CanLII 46173 (ON SC), the defendants sought their costs of the motion. The plaintiff argued that costs be reserved until after trial because of the plaintiff’s impecuniosity. The plaintiff was ordered to pay the defendant’s costs within 30 days fixed in the sum of $5000:

[18] The defendants sought their costs of the motion. The plaintiff argued that costs be reserved until after trial because of the plaintiff’s impecuniosity. I ordered that the plaintiff pay the defendant’s costs within 30 days fixed in the sum of $5000.

[...]

[27] On April 27 the plaintiff’s motion to vary my two costs orders and the order of Echlin J. was heard by D. Brown J. who summarized the plaintiff’s argument as follows in his endorsement dated April 30, 2007:

She deposed that she is impecunious and lives on social assistance. She cannot afford to pay the cost awards made by Master Dash. Those awards stand as a barrier between her and the opportunity to have her day in court. If the Defendants secure a dismissal of her claim because she cannot pay the costs awards, she argued that justice would not be done. The plaintiff sought a remedy under section 24(1) of the Canadian Charter of Rights and Freedoms. She contended that for a judicial officer to order costs on an interlocutory motion against an impecunious plaintiff when the plaintiff has no realistic financial means of satisfying the order would deprive the plaintiff of rights guaranteed to her under section 7 of the Charter. I understand that the plaintiff did not raise her Charter argument in the course of making cost submissions to Master Dash.

[...]

THE ROLE OF IMPECUNIOSITY IN COSTS AWARDS AND DISMISSAL MOTIONS

[35] The defendants rely on rules 57.03(2) and 60.12 which provide:

57.03 (1) On the hearing of a contested motion, unless the court is satisfied that a different order would be more just, the court shall,

(a) fix the costs of the motion and order them to be paid within 30 days…

(2) Where a party fails to pay the costs of a motion as required under subrule (1), the court may dismiss or stay the party’s proceeding, strike out the party’s defence or make such other order as is just.

60.12 Where a party fails to comply with an interlocutory order, the court may, in addition to any other sanction provided by these rules,

(a) stay the party’s proceeding;

(b) dismiss the party’s proceeding or strike out the party’s defence; or

(c) make such other order as is just.

[36] Costs are a matter within the discretion of the judge or master hearing a motion and the court may determine by whom and to what extent costs shall be paid.[2] The court is to take into account the factors under rule 57.01[3] and make a costs award that is fair and reasonable in the circumstances. The normal rule is that costs of a contested motion are payable by the losing party to the winning party, although the fact that a party is successful does not prevent an award of costs against the winning party.[4] In accordance with rule 57.03(1) the presumptive rule is that costs are fixed by the motions judge or master and payable within 30 days, although a different order may be made if more just.

[...]

[47] In the recent decision of Christian Jew Foundation v. Christian Jew Outreach[28] Perell J. undertook “an analysis of the role of impecuniosity as a factor in the court's discretion to award costs.”[29] In that case the defendants sought leave to appeal an award of costs of $29,974 made by Master Sproat following a productions and refusals motion. Leave to appeal was sought partly on the basis that the defendants were impecunious and unable to pay, thus exposing them to a motion to strike their statement of defence and counterclaim under rules 57.03(2) and 60.12. They argued in their factum that “justice is subverted if [the defendants] never get an opportunity to go to trial.” They objected to the requirement that the costs be payable within 30 days as ordered and submitted they should instead be paid in any event of the cause. This is similar to the arguments made by Mr. Guiste on the motions to vary before both Brown J. and myself. Perell J. denied leave to appeal and held that if he had granted leave he would have dismissed the appeal on its merits and refused to vary the costs order of Master Sproat.

[48] Perell J. first reviews two lines of cases that considers whether impecuniosity may be a relevant factor to consider in the award and enforcement of costs.

61 I begin this exploration by noting that there are authorities that support the proposition that a party's impecuniosity is not a relevant factor in the exercise of a court's discretion in awarding or enforcing costs awards. In particular, impecuniosity will not insulate a party from liability of costs otherwise payable and impecuniosity cannot be used as a justification for failure to obey a court's orders: [case citations]

62 The policy rationales behind this line of authority are that: (a) a rule based on impecuniosity would present problems of interpretation, evidence, and application and such a rule would be undesirable; (b) and the courts would become powerless to control an impecunious party who could bring and defend motions without fear of any sanction for irresponsibly bringing or resisting interlocutory motions, and, therefore, impecuniosity should not be a factor in awarding or enforcing costs awards.

64 There are, however, authorities that support the proposition that impecuniosity is a relevant factor and may be considered in awarding and in enforcing costs awards including determining when the costs should be payable: [case citations]

65 The policy rationale behind this competing line of cases that access to justice is a necessary and desirable attribute of the administration of justice and access to justice may be thwarted if the effect of a party's impecuniosity is ignored when the court exercises its discretion to award or enforce a costs award.[30]

[49] Perell J. then considered the decision of Blair J.A. in Larabie v. Montfils[31] where the plaintiff was appealing an order dismissing his action as an abuse of process and the defendants moved for security for costs because of unpaid costs orders. Blair J.A. determined that the plaintiff was impecunious and an order for security for costs would deprive him of adjudication on the merits. He recited the well-known rule in security for costs cases that “courts are reluctant to deprive a worthy but impecunious litigant of the opportunity to have his or her claim adjudicated when it is not plainly devoid of merit”.[32] Blair J.A. weighed the competing factors and interests, including the proposition that “litigants are not free to ignore or flout orders of the court awarding costs against them” and decided to “exercise my discretion” and allow the appeal to proceed without posting security.[33]

[50] Perell J. opined that the approach by Blair J. was the preferable one and stated:

In most cases, impecuniosity will not be a factor; however, as I understand Justice Blair's more flexible approach, in the exercise of its discretion, a court can probe the circumstances and assess, what might be called "the procedural good faith" of the party using impecuniosity as his or her excuse for failing to comply with a court order, including a failure to pay costs. Is the person using impecuniosity as a means to avoid his or her responsibilities or in good faith as an apology or explanation for failing to do so?[34]

He supported this by the following passage from Heu v. Forder Estate:

There may be situations where a clearly meritorious case should not be dismissed against an impecunious plaintiff for failing to pay interlocutory costs orders, but given the need of the court to retain control over its process and the legitimacy of its orders, such situations should be the exception and not the norm.[35]

[51] Perell J. decided that because Master Sproat had not accepted that the plaintiffs were impecunious, it was not necessary for her to exercise her discretion, but even if impecuniosity had been proven, Master Sproat’s exercise of discretion to order payment of costs within 30 days would not have been clearly wrong.[36]

[52] Although the matter before Perell J. had not yet reached the stage where a dismissal or stay was sought based on failure to pay the costs award (as it is in the matter before me), he had this to say:

[I]t remains to be seen whether the Foundation and Mr. Hedrick will move and rely on rules 57.03(2) or 60.12 to stay the counterclaim or strike out the party's defence; in that event, following Larabie v. Montfils, supra, the court retains the discretion to permit the defence and counterclaim to proceed.

[53] Therefore, when faced with a motion to dismiss or stay an action brought by an impecunious plaintiff who has not paid costs awarded on an interlocutory motion, the court retains a discretion to either dismiss or stay the action or allow it to proceed, in other words to “make such order as is just.”

[54] The cases to which I have referred lead me to conclude that the court has a discretion to take into account the impecuniosity of a litigant in an award of costs and on a motion to dismiss for failure to pay those costs. The court should consider as a relevant factor in the exercise of its discretion the effect on access to justice if costs are sought to be awarded or enforced against an impecunious litigant, but the court is free to then it give it whatever weight it deems appropriate in all of the circumstances, including no weight. Furthermore, although impecuniosity is a relevant factor, it is only one factor. There is not only one party involved in the action – the defendant has rights as well which the court must take into account. It is unfair that the defendants continue to incur substantial costs in compelling the plaintiff to comply with her production and discovery obligations and with court orders, when that plaintiff could, in the absence of sanctions, have carte blanche to ignore orders of the court and to bring, resist and appeal motions with impunity, with no fear of costs consequences by simply pleading impecuniosity at every turn. The court must also take into account the interest of the court in ensuring that its rules and orders are not ignored and retaining some measure of control over a party’s conduct. There must be fairness and a balancing of interests, but clearly a person’s modest means cannot serve as an excuse to play by a different set of procedural rules and ignore orders of the court and the rules of court with impunity. Unreasonable conduct should not be rewarded by denying costs to the innocent defendant or by deferring payment until after trial.

[55] Among the factors the court should consider in determining what result is just on a motion to dismiss an action against an impecunious litigant for failure to pay a costs award, are the circumstances that led up to the award of costs. For example, were the costs awarded, notwithstanding the plaintiff’s impecuniosity, to deter bad behaviour, such as the flouting of the rules or orders of the court, or were they simply an award of costs against a losing party to a motion brought or resisted in good faith and on reasonable grounds? Perell J. stated in Christian Jew Foundation that the court should “probe the circumstances and assess…the procedural good faith of the party using impecuniosity as his or her excuse for failing to comply with a court order” and suggested the court ask: “Is the person using impecuniosity as a means to avoid his or her responsibilities or in good faith as an apology or explanation for failing to do so?”[37] Clearly, there is a more compelling case for not allowing a litigant to avoid a dismissal or stay of the action for failure to pay costs when the litigant’s behaviour that led to the costs award involved flouting orders of the court and ignoring the rules of the very court to which they claim a right of access.

[...]

[63] In my view a dismissal order would be just in the circumstances, despite the plaintiff’s impecuniosity. When orders of the court are cavalierly ignored, when a litigant continuously fails to comply with her obligations as a litigant and then fails to abide by the costs consequences attendant upon that behaviour, the court is justified in bringing some finality to the action. However, dismissal is a drastic remedy and in my view it is more appropriate to stay the action to give the plaintiff or Mr. Guiste one last opportunity to pay the costs in order that the action may proceed. As I stated in Heu v. Forder, much of which is applicable to the matter before me at this time:

Notwithstanding that a dismissal would be appropriate I also acknowledge that a dismissal is an extreme remedy, to be applied as a last resort. While the plaintiff’s failure to pay the costs threatens the court’s ability to enforce its own orders, and perhaps indicates an unwillingness of the plaintiff to accept that she should be responsible for her conduct that has resulted in the defendants incurring costs…[i]t would be just to allow the plaintiff one final opportunity to pay her outstanding costs awards, as well as costs of this motion. The defendants, however, should not be required to continue to expend even more funds in the defence of this action until the costs it has already incurred as a result of the plaintiff’s conduct, as reflected in costs orders made to date, are first paid. [38]

To assure, however, that the plaintiff pays costs of interlocutory motions awarded against her during the course of the proceeding, the order that in my view is most just is to stay the action until the interlocutory cost awards have been paid. In my view that will drive home to the plaintiff that she does not have a “free ride” and that there is a price to pay when she refuses to answer proper questions, unreasonably opposes proper motions or brings her own motions which are unsuccessful. As stated by Eberhard J. in Stacey, supra, the plaintiff “should be given the opportunity, now that the stakes have been made clear, to comply with the cost order in order to continue to adjudication on the merits.”[39]

If the costs are not paid and the stay lifted within six months the defendants may again move to dismiss the action, since these doctors cannot have these allegation hanging over their heads indefinitely. I concur with Eberhard J. who stated, “a stay until such time as the…Plaintiff chooses to comply with the cost order is too open-ended. The issues should be brought to adjudication in the time frame fixed or be terminated.” [40]

[64] In Heu v. Forder I allowed six months to pay before I would entertain a dismissal. I appreciate that it is extremely unlikely the plaintiff will be in any better financial circumstances in six months than she is now. Realistically, the only way that the stay will be lifted and a dismissal avoided is for Mr. Guiste to pay the costs for which he is responsible. This should not take more than six months if Mr. Guiste accepts this responsibility. I wish to make it clear that if the costs are not paid in that time the action will be dismissed barring the most exceptional of circumstances.

In Baksh v. Sun Media (Toronto) Corp., 2003 CanLII 64288 (ON SC) Master Dash stated that for orders of the court to have any meaning they must be enforced:

[19] In my view the court has granted sufficient indulgences to the plaintiff. The plaintiff's breaches have in my view now become contumelious. The final indulgence granted in my order of July 25, 2002 spoke of no ambiguity as to its mandatory nature: "If the costs and security for costs are not paid by October 31, 2002, the action will be dismissed by motion on notice." For orders of the court to have any meaning they must be enforced. I am not satisfied by cogent evidence that the plaintiff is impecunious. Even if I were so satisfied, a party should not be able to set up his own impecuniosity as a shield against costs sanctions. To [page60] allow that would mean that a plaintiff could bring, resist, or appeal motions with no fear of consequences, and would emasculate the powers provided in rules 57.03(2) and 60.12. In my view, there is no other order in the circumstances of this case that is "more just" than a dismissal of the action. A continued stay would not serve the case management goal of avoiding undue delay. Further, while this action remains outstanding, a "libel chill" continues to hang over the head of the defendant author, Mr. Schmied, as serious allegations have been made against him and not dealt with. If an indefinite stay were imposed, the allegations may never be dealt with. In my view the temporary stay granted in July should have given the plaintiff sufficient time to make arrangements to comply with the court orders to pay costs, pay security and answer the refusals. The action will be dismissed with costs under rules 57.03(2), 34.15(1)(b), 77.10(7)(b) and 60.12(b), both collectively and individually.

In Myers v. Metropolitan Toronto Chief of Police, 1995 CanLII 11086 (ON SCDC), the Court held that the general rule contained in s. 131 of the Courts of Justice Act, R.S.C. 1990, c. C.43, is that costs are in the discretion of the court. The exercise of that discretion should be interfered with on appeal only in limited circumstances:

[2] In the second order, dated February 11, 1993, the learned trial judge fixed the defendant's costs of the aborted trial in the amount of $9,000 payable by the plaintiff within 15 days, failing which the action would be dismissed. At the time he made the second order, the learned trial judge was aware that the plaintiff claimed to be impecunious.

[...]

[6] The fixed costs of $9,000 have not been paid, but no order has been made dismissing the action, no doubt because of the appeal.

[...]

[19] Even if the meaning of a rule based on impecuniosity could be established, by what process could the court or the opposing party check on the truthfulness and accuracy of the claim? Could there be examinations during the course of an action similar to examinations in aid of execution? These potential problems, in my opinion, provide sound practical reasons for not permitting alleged impecuniosity to provide a shield against cost sanctions.

[20] The general rule contained in s. 131 of the Courts of Justice Act, R.S.C. 1990, c. C.43, is that costs are in the discretion of the court. The exercise of that discretion should be interfered with on appeal only in limited circumstances The rule was stated by Lamer C.J.C. in Canadian Pacific Ltd. v. Matsqui Indian Band (1995), 1995 CanLII 145 (SCC), 122 D.L.R. (4th) 129 at pp. 145-6, [1995] 1 S.C.R. 3, 26 Admin. L.R. (2d) 1, as follows:

This discretionary determination should not be taken lightly by reviewing courts. It was Joyal J.'s discretion to exercise, and unless he considered irrelevant factors, failed to consider relevant factors, or reached an unreasonable conclusion, then his decision should be respected. To quote Lord Diplock in Hadmor Productions Ltd. v. Hamilton, [1982] 1 All E.R. 1042 (H.L.) at p. 1046, an appellate court "must defer to the judge's exercise of his discretion and must not interfere with it merely on the ground that the members of the appellate court would have exercised the discretion differently".

[21] Because of the importance of avoiding a situation in which litigants without means can ignore the rules of the court with impunity, and the distastefulness of creating a rule incapable of consistent application, the learned trial judge in the case at bar, in my opinion, acted reasonably in refusing to take into account the impecuniosity of the plaintiff. The orders fell squarely within his discretionary power. The appeal is dismissed.

In Walsh v. 1124660 Ontario Limited, 2007 CanLII 27588 (ON SC), at issue was the award of costs after the trial was over, so no issue of on-going non-compliance with orders, or defying the court existed. There was no future conduct of the plaintiff to deter:

[10] There is also case law supporting the view that the individual circumstances of a party are a legitimate concern in exercising discretion as to costs. In Byers[4] the trial judge, Sachs J., considered the personal circumstances and resources of the unsuccessful plaintiffs:

The plaintiffs in this case were Tammy Byers and her parents, David and Gail Byers. Tammy is brain damaged and unable to work. She will continue to need the constant care and attention of her family. Mr. Byers works as a sanitation engineer; Mrs. Byers runs an engraving business that, on the evidence I heard, generates a very small living. The parties live in rented accommodation. While what happened to Tammy in 1998 was not the fault of the defendants, I cannot see how justice would be served by making an award of costs against the plaintiffs. They have few financial resources and are coping with the hugely tragic circumstances of Tammy's asthma attack.

[...]

[14] If costs awards, to be paid by the losing party, reach the level, as they have done in Ontario, that they can bankrupt an ordinary person, never mind an impecunious one, there is a danger that confidence in the justice system will be undermined and it will increasingly be seen, and not without good reason, as a system for business and the wealthy, but not for the mass of people whose tax dollars fund the system. The loser-pay costs system can act as a serious barrier to justice, deterring deserving as well as frivolous cases. Many jurisdictions get along quite well without a “loser pay” system. Perhaps we should become one of them and deter frivolous cases and improper conduct in other ways. But that great a change in our system is not for me to create and I return to the real world.

[...]

[20] In the present case, unlike Myers, we are dealing with costs after the trial is over, so no issue of on-going non-compliance with orders, or defying the court exists. There is no future conduct of this plaintiff to deter. The simple question is whether there can be a consideration of the paying party’s means in considering the disposition of costs. In my opinion, the answer to this question must be yes where impecuniosity is demonstrated. Any other answer creates a straightjacket which is inconsistent with the discretionary nature of all costs orders. In my opinion, impecuniosity falls within Rule 57.01: “any other matter relevant to the question of costs.” Whether to consider it as a factor in any particular case remains a matter within the discretion of the judge.

Alexsei publishing date:
70