John David Meenan Murphy

Following the refusal of leave to appeal an order, the successful party sought costs.

The responding party argued that awarding costs at this stage would be unjust because issues arising from earlier procedural missteps by the plaintiff could be addressed later in the proceeding.

The court held that each litigation step attracts its own costs determination and that any additional costs arising from procedural errors could be considered when final costs are assessed.

As the plaintiff successfully resisted the motion for leave to appeal, the court fixed costs in its favour on a partial indemnity basis.

The moving party sought leave to appeal an order granting consolidation and transfer of several Small Claims Court actions to the Superior Court of Justice and dismissing a motion to strike for abuse of process.

The moving party argued that a prior consent dismissal in a related Superior Court action rendered the issues res judicata and relied on appellate authority concerning the finality of consent dismissal orders.

The court held that the prior decision did not conflict with the authorities cited and that the motions judge properly exercised discretion in considering the factors from the Supreme Court of Canada decision addressing res judicata.

The court found no reason to doubt the correctness of the earlier ruling and concluded that the circumstances were sufficiently particular to avoid concerns about undermining finality of consent dismissals.

Leave to appeal was therefore refused.