Legal Blog

Dismissal, Order Breach

Garrett v. Oldfield, Greaves, D’Agostino 2016 Ont CA

Plaintiff brought a motion for summary judgment, lost, and was ordered to pay $10,400 in costs. The defendant brought a motion to dismiss the action because the plaintiff had not paid the costs ordered. Rule 57.03(2) allows the court the discretion to dismiss an action for failure to pay a costs order. In order to do so, a court must balance the competing interests of the parties and consider all relevant factors. The court does not wish to dismiss an otherwise meritorious action if the party owing the costs can demonstrate that the costs were not paid because that party was impecunious. Conversely, it is important for the administration of justice that a court order be followed. In this case, the plaintiff presented no evidence regarding the merits of her action or of any alleged impecuniosity. The motions judge weighed the competing interests and exercised his discretion to dismiss the action; the Court of Appeal dismissed the plaintiff’s appeal.

Written by Jonathan Speigel Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.