Court of Appeal for Ontario

Date: 2025-05-16
Docket: COA-25-OM-0104

Judge: L.B. Roberts

Parties

Between:
Susan Henderson (Applicant / Moving Party)

and
Wei Wang, in her personal capacity and as Estate Trustee for the Estate of Ruth Emmalene Henderson, Robert Henderson, John David Henderson, Deborah Hall, Jewella Henderson (a minor by her litigation guardian the Children’s Lawyer for the Province of Ontario), Faith Henderson, Tanner Jacob McNeil (deceased), Alana Cook, and Caelan Fulton (Respondents / Responding Party)

Appearances:

• Susan Henderson, acting in person
• Christopher Crisman-Cox, for the responding party, Wei Wang

Heard: In writing

Costs Endorsement

[1] On April 29, 2025, I dismissed, with costs to the responding party, the moving party’s motion in writing to extend the time to file a notice of appeal from the February 18, 2025 judgment dismissing her will challenge application.

[2] In my April 29th Endorsement, I indicated that if the parties could not agree on the quantum and scale of the responding party’s costs, they could make written submissions of no more than two pages, plus a costs outline, by May 8, 2025. On May 6, 2025, the moving party requested that costs not be determined because she was seeking to review my order. I declined to do so and extended the time for the delivery of her cost submissions to May 15, 2025. I also permitted her to file supplementary costs submissions. I have received and reviewed both parties’ written submissions.

[3] The moving party asks that no costs be ordered because of financial hardship, public interest in the issues raised, the pending review of my April 29th order, and she is a self-represented litigant who acted in good faith.

[4] I am not persuaded that there is any basis to revisit my decision that the responding party is entitled to her costs of the moving party’s motion and that costs should be determined without further delay. I have no evidence of any financial hardship and the moving party’s financial situation is not dispositive of the issue of costs in any event. There is no public interest component that transcends the private dispute between the parties. The responding party was entirely successful on the extension motion. There is no reason to depart from the general principles that costs should follow the event and be determined immediately following the motion. Accordingly, the only questions are scale and quantum.

[5] The responding party requests costs in the amount of $4,892.78, representing partial indemnity costs up to, and then substantial indemnity costs following, her offer of two earlier dates for the filing of the moving party’s notice of appeal. She argues that had the moving party accepted either of the proffered dates, her extension motion would have been unnecessary. Alternatively, she requests partial indemnity costs in the amount of $3,630.69.

[6] The real question here is whether the responding party’s success on the extension motion warrants costs on a substantial indemnity scale. I am not persuaded that it does. While the moving party’s refusal of the earlier dates was unreasonable and her extension motion was weak, the responding party does not seek costs on the basis that the extension motion was frivolous, vexatious or otherwise so devoid of merit that costs on the extraordinary substantial indemnity scale are warranted.

[7] Accordingly, the responding party is entitled to her partial indemnity costs of the motion. The requested costs of $3,630.69 are fair, reasonable, and proportionate. The moving party shall pay them within 30 days of the release of this Costs Endorsement.

“L.B. Roberts J.A.”