Costs if Motion to Dismiss Is Denied: Section 137.1(8)

• Author: David A. Potts; Erin Stoik
• Pages: 324-329

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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: