Costs if Motion to Dismiss Is Denied: Section 137.1(8)
Author | David A. Potts; Erin Stoik |
Pages | 324-329 |
324
31
Costs if Motion to Dismiss Is Denied: Section 137.1(8)
If a judge does not dismiss a proceeding under section 137.1(8) of the Courts
of Justice Act, RSO 1990, c C.43, the responding party is not entitled to costs
on the motion, unless the judge determines that such an award is appropriate
in the circumstances.
SECTION 137.1 COSTS REGIME
Section 137.1 motions have their own costs regime. See, for example:
Bent v Platnick, 2020 SCC 23 at para 179:
[179] With regard to costs, as I said in Pointes Protection, the legislature
expressly contemplated a costs regime for s. 137.1 motions. Indeed, s. 137.1(8)
sets out a default rule that when a s. 137.1 motion is dismissed, neither party
shall be awarded costs, unless a judge determines that “such an award is
appropriate in the circumstances”.
Veneruzzo v Storey, 2018 ONCA 688 at paras 6 and 29:
[6] The motion judge also awarded costs to the respondents (plaintiffs in
the action), despite the language of s. 137.1(8), which creates a “presumption”
that a responding party should not have its costs when a s. 137.1 motion is
dismissed.
. . .
[29] . . . However, s. 137.1 motions have their own costs regime. Section
137.1(7) provides that if the defendant (moving party) is successful in having the
plaintiff’s claim dismissed on a s. 137.1 motion, the defendant is entitled to its
costs of the motion and in the proceeding on a full indemnity basis, unless the
judge determines such an award would be inappropriate in the circumstances.
If the defendant is unsuccessful on the s. 137.1 motion, s. 137.1(8) provides:
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