The defendant Maryvale brought a motion to dismiss the plaintiff's action due to his failure to pay two costs awards totaling $51,500 arising from a successful appeal and a dismissed leave application to the Supreme Court of Canada.
The plaintiff argued the court lacked jurisdiction under Rules 57.03 and 60.12 as the costs orders did not arise from a contested motion or interlocutory order.
The court found that even if it had jurisdiction, dismissing the action would not be just, as the Court of Appeal had ordered a new trial without making costs payment a precondition, the costs were not sanctions for bad behaviour, the plaintiff's claim was not devoid of merit, and the plaintiff was impecunious.
