COURT OF APPEAL FOR ONTARIO
Roberts, Coroza and Wilson JJ.A.
BETWEEN
Maxine McClory
Applicant (Appellant/ Respondent by way of cross-appeal)
and
Marion Laird and Christopher Pehlke
Respondents (Respondents/ Appellants by way of cross-appeal)
Philip Cornish, for the appellant/respondent by way of cross-appeal
Catherine Patterson, for the respondents/appellants by way of cross-appeal
Heard: in writing
On appeal from the order of Justice Brian Dubé of the Superior Court of Justice, dated May 22, 2025, with reasons at 2025 ONSC 3048, and the costs order, dated September 19, 2025, with reasons at 2025 ONSC 5339.
REASONS FOR DECISION
1On June 23, 2026, the appellant delivered a notice of abandonment of her appeal from the dismissal of her application that the respondents pass their accounts related to their late mother’s property.
2Given that the appellant served her notice of abandonment of her appeal on the eve of the hearing of the appeal, after the respondents had filed their responding materials, we see no basis to depart from the provisions of r. 61.14(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, that the respondents are entitled to the costs of the abandoned appeal. We fix the respondents’ costs of the appeal in the all-inclusive requested amount of $7,102.05, which we find reasonable and fair in the circumstances of this case.
3The respondents have not abandoned their motion to seek leave to cross-appeal from the costs award in their favour in the amount of $13,000. They argue that the application judge erred in not awarding them full indemnity costs.
4We are not persuaded that there is any basis to interfere with the application judge’s discretionary costs order. The costs order is not the product of any reversible error and was open to the application judge to make, following his careful review of all the circumstances. The circumstances of this case do not justify the elevated scale of full indemnity costs. The respondents have not met the very high hurdle required to obtain leave to appeal the application judge’s discretionary costs order. Leave to cross-appeal is therefore denied.
5The dismissal of the leave to cross-appeal motion gives rise to a prima facie entitlement to costs in favour of the appellant. We fix the appellant’s costs of the cross-appeal in the all-inclusive amount of $1,500.
6As requested by the appellant, the cross-appeal costs shall be deducted from the appeal costs, with the result that the appellant must pay the respondents the net balance of $5,602.05 within 30 days of the release of these reasons.
“L.B. Roberts J.A.”
“S. Coroza J.A.”
“D.A. Wilson J.A.”