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Settlement and Costs

Muskala v. Sitarski 2017 Ont SCJ

The plaintiff brought a motion for production of information by the corporate defendants. The parties settled the motion other than costs. The parties then submitted their costs requests to a motions judge. The judge held that costs normally should not be awarded when parties settle; such a settlement is usually a settlement without costs. The main reason for the refusal was that it was difficult, if not impossible, to balance the factors under Rule 57.01 without having heard the facts and made a decision on the actual dispute. Further, costs are an incident to the determination of the rights of the parties and are not themselves supposed to be the subject matter of litigation. There might be exceptional cases in which costs would be justified, but this case was not one of them. Accordingly, if costs are important, an attendance is necessary and the parties cannot indicate that the matter has been “settled”. Note: this decision seems to apply just as much for a settlement of the action itself as it would for a motion.

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