Court File and Parties
Court File No.: C-315-13
Date: 2025-06-27
Court: Ontario Superior Court of Justice
Between:
Katrina Storm Corkum, by her Litigation Guardian, Gregory McKenna,
Ashley Amber Brake by her Litigation Guardian, Gregory McKenna,
and Melvie Brake
Plaintiffs
and
Tracey E. Kaufman and Terrence John Brake
Defendants
Counsel:
- Stephanie Coppens, for Ashley Brake
- Liam Mackrell, for Terrence John Brake
Heard: June 25, 2025
Reasons for Decision on Costs
Justice M. Bordin
Overview
[1] The plaintiff Ashley Amber Brake (“Ashley”) was involved in a motor vehicle accident on June 1, 2007. She was three years old. Ashley was in a car seat in a vehicle driven by her father, the defendant Terrence John Brake (“Terrence”), when a vehicle operated by the defendant Tracy E. Kaufman (“Kaufman”) collided with their vehicle. The statement of claim was issued on May 20, 2009. Terrence delivered a defence in October 2009. Ashley was involved in a prior accident for which she also issued a claim (the “companion action”). John King (“King”) was a defendant in that action. Terrence was also a defendant in the companion action and was separately represented.
[2] Terrence made an assignment in bankruptcy in or about 2019. As a result, this action (and the companion action) was stayed against him. No order to continue has been obtained.
[3] In early 2024, Terrence served a motion seeking an order to continue this action, to dismiss Ashley’s claim against him in this action, and seeking costs of the action and the motion. On April 18, 2024, Gordon J. dismissed Ashley’s claim in this action against Terrence on consent and adjourned the issue of costs to be heard as a long motion. At the time of the motion before Gordon J., Ashley’s claim against Kaufman remained outstanding.
[4] The motion to determine costs finally came before me on June 25, 2025. Terrence seeks costs payable by Ashley and by her lawyers personally.
History of the Proceedings
[5] The plaintiffs’ examination for discovery took place in October 2011. A mediation took place in March 2013. The parties attended pretrials relating to this action on April 13, 2013, October 29, 2013, May 9, 2017, September 4, 2018, January 17, 2019, and August 27, 2019.
[6] There is evidence that in the companion action, King brought a motion returnable at the pretrial on May 9, 2017, for an order dismissing this action and the companion action as against Terrence “upon consent of the Defendants, John King and Tracey Kaufman, to admit liability in their respective actions once the remaining claims were limited to their remaining policy limits.” There is evidence that all parties consented to the dismissal of this action against Terrence contingent upon the relief sought on the motion being granted, including a limiting of the claims to the remaining policy limits. The evidence does not indicate whether this action against Terrence was to be dismissed without costs.
[7] There is evidence that at the hearing of the motion, Nightingale J. found that there was insufficient evidence regarding the particulars of the plaintiffs’ damages (including Ashley) and the motion was adjourned sine die. I have not been provided with a copy of Nightingale J.’s endorsement to that effect. The motion does not appear to have ever been brought back on, even though there were further pretrials on September 4, 2018, January 17, 2019, and August 27, 2019, and the actions remained extant for another 7 years.
[8] There is evidence that Terrence’s lawyer in the companion action acknowledged that he had not been participating in pretrials since January 2019 because Nightingale J. had excused Terrence from participating. Again, I have not been provided with a copy of Nightingale J.’s endorsement to this effect if there is one.
[9] There is evidence that at the pretrial on August 27, 2019, the parties reached a conditional settlement of Ashley’s claims in both actions, and the claims of Rachael Brake in the companion action, in the global amount of $165,000 plus costs and disbursements, to be agreed upon or assessed. The conditions of the settlement included the involvement of the Office of the Children's Lawyer and judicial approval of the settlement. On the evidence, it appears that nothing came of that settlement.
[10] Ashley then served a notice of change of lawyer on September 16, 2020, in which Ashley’s current lawyers became the new lawyers of record. Ashley’s current lawyers encountered difficulties in obtaining the complete file from Ashley’s prior lawyers.
[11] Ashley’s lawyers informed all parties on November 11, 2021, that they had not received their predecessor's file. At a seventh pretrial on December 3, 2021, Nightingale J. acknowledged the issues that Ashley’s current lawyers were having in obtaining the file and requested a further settlement conference with him. It occurred on May 2, 2022. Nightingale J. set a timetable for remaining steps in the litigation including requiring Ashley to serve an affidavit of documents by July 29, 2022, to attend examinations for discovery on September 23, 2022, to bring a motion to compel Ashley’s first lawyers to produce their file, to bring a motion to lift the stay of proceedings against Terrence by June 12, 2022, and to take steps to continue the action without litigation guardians by June 13, 2022. Terrence raised the possibility of a motion to dismiss for delay at the May 2, 2022, settlement conference.
[12] Despite requests from Ashley’s current lawyers in April through July 2022 for assistance in reconstructing missing documents, Terrence did not respond to the request or provide any missing documents.
[13] Shortly after the May 2, 2022, settlement conference, Ashley’s current lawyers wrote the parties to advise of their position on the directions made by Nightingale J. They advised that the plaintiffs could not complete an accurate affidavit of documents and that they did not intend to proceed with a motion to lift the stay of proceedings because the plaintiffs did not intend to pursue the claims against Terrence. It was also their position that it would be inefficient to bring a motion to lift a stay of proceedings against a party only to then dismiss the action against him.
[14] On June 6, 2022, Ashley’s current lawyers wrote to Nightingale J. In part, they indicated that they did not want to proceed with the “unnecessary” motion to lift the stay against Terrence because the plaintiffs did not intend to pursue the claims against him and said it would be inefficient to bring the motion only to then dismiss the action against him. The lawyers also advised that they were not going to take steps to continue the action without litigation guardians by June 13, 2022, as directed by Nightingale J., because they wanted to wait for both plaintiffs to reach the age of majority.
[15] On June 8, 2022, counsel for Terrence in the companion action advised that, due to the stay of proceedings against Terrence flowing from his bankruptcy in 2019 and the plaintiffs' stated intention not to bring a motion seeking an order to continue, his office would no longer be involved in the matter.
[16] In late July and early August 2022, Ashley’s lawyers informed all parties of their intention to be removed as lawyers of record for the plaintiffs. For reasons set out in Ashley’s materials, they did not immediately proceed with the motion.
[17] Settlement discussions with counsel for King and Kauffman were then restarted by Ashley’s lawyers.
[18] Ashley’s lawyers did not serve a motion to be removed from the record until September 5, 2023. It was initially returnable October 26, 2023. On September 17, 2023, Terrence advised Ashley’s lawyers that he would bring a motion to dismiss Ashley’s claim. Ashley did not attend her examination for discovery on September 23, 2022, as ordered by Nightingale J.
[19] The motion to be removed as lawyers of record was adjourned and was not brought back on for reasons set out in Ashley’s materials. Ashley’s current lawyers have remained her lawyers since being retained.
[20] After several inquiries about the status of the motion to remove Ashley’s lawyers, on January 4, 2024, Terrence again served this motion to dismiss Ashley’s claims against him. The motion was returnable February 14, 2024. Ashley’s lawyers advised Terrence that he would need to serve Ashley personally and advised that their retainer was limited to negotiating a settlement. Ashley was served with the motion record on February 2, 2024.
[21] On February 7, 2024, Ashley’s lawyers sought an adjournment of the motion and set out the reasons for the adjournment request. Terrence’s response that the motion would proceed did not come to the attention of Ashley’s lawyers until February 13, 2024. On that date, they also raised with Terrence that he did not have standing to bring his motion because of his bankruptcy and the stay of proceedings.
[22] On February 14, 2024, Terrence’s motion was adjourned to April 18, 2024.
[23] It was not until April 1, 2024, that the plaintiffs filed a requisition for an order to continue the actions without a litigation guardian, despite the June 13, 2022, deadline set by Nightingale J. and that Ashley had reached the age of majority in 2021.
[24] On April 18, 2024, Gordon J. dismissed Ashley’s action against Terrence on consent and adjourned the issue of costs to be heard as a long motion. Following the hearing, Ashley’s lawyers determined that it was not feasible for them to be removed from the record.
Order to Continue
[25] In her written materials, Ashley asserts that Terrence does not have status to bring this motion to dismiss because the action has been stayed against him, notwithstanding that it was Ashley who was directed by Nightingale J. on May 2, 2022, to obtain the order to lift the stay of proceedings against Terrence. No request was made to vary this clear direction of the court. The plaintiff did not comply with the direction because the plaintiff did not want to incur unnecessary costs. This is not a reason to ignore a direction from the court.
[26] In oral submissions Ashley advised that she is not “vigorously” opposed to the stay being lifted and an order to continue being granted. The action against Terrence was dismissed by Gordon J. notwithstanding the stay.
[27] Having considered rr. 11, 1.04, and 2.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg 194, I find that it is appropriate to grant an order to continue the action and to lift the stay against Terrence so that the remaining issue of costs may be addressed.
Costs of the Action
[28] Subject to the provisions of an act or the rules of this court, costs are in the discretion of the court: s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. In exercising that discretion I may consider, in addition to the result in the proceeding and any offer to settle, the factors enumerated in r. 57.01 of the Rules.
[29] Fixing costs is not a mathematical exercise of multiplying hourly rates by the amount of time spent. Assessing the appropriate quantum of costs requires a consideration of what is fair and reasonable for the unsuccessful party to pay in the circumstances: see Boucher v. Public Accountants Council for the Province of Ontario.
[30] A costs award should reflect what the court views as a fair and reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs to the successful litigant: Zesta Engineering Ltd. v. Cloutier, para 4.
[31] In fixing costs, the overriding principle is reasonableness. As stated in Davies v. Clarington (Municipality), 2009 ONCA 722, para 52: “Rather than engage in a purely mathematical exercise, the judge awarding costs should reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant”: Pye v. Di Trapani, 2025 ONCA 355, para 3; see also Zesta Engineering Ltd. v. Cloutier, para 4.
[32] Terrence seeks his partial indemnity costs of the entire action. He relies on the general principle that a successful party is entitled to costs. He notes that over the course of 15 years of litigation he was required to respond to pleadings, conduct discoveries, attend numerous pretrial conferences, engage in correspondence, and bring a motion to dismiss the action.
[33] Terrence’s costs of the action (excluding the motion to dismiss) are $29,037.62 on a partial indemnity basis. He seeks 40 percent of his costs of the action from Ashley on the basis that her claimed damages represent 40 percent of the total amount of damages claimed. Forty percent of partial indemnity costs of the action is $11,615.05. In the alternative, Terrence seeks one-third of his partial indemnity costs of the action from Ashley because she is one of three plaintiffs. This amounts to $9,679.20.
[34] Ashley submits that Terrence is not entitled to any costs of the action. She relies on Nesbitt v. Jeffery, 2022 ONSC 144.
[35] In Nesbitt, the court considered the refusal by the MTO to agree to a without costs dismissal or discontinuance of the only remaining claim, Jeffrey’s third party against the MTO, after the plaintiff’s action against Jeffery and third party claims against others were dismissed. The action involved a motor vehicle accident that the plaintiff asserted was Jeffery’s fault. Jeffery asserted that the road conditions caused or contributed to the accident and added the township and counties and eventually the MTO as third-party defendants. The main action settled at mediation. Jeffery then examined the MTO and, following answers to undertakings, determined he could not succeed against the MTO. Proposals for a dismissal without costs having been ignored, Jeffery served a motion to dismiss the third-party claim against the MTO. The MTO brought a cross motion to dismiss for delay pursuant to r. 24.01. The only issue before the court was costs.
[36] The court held that it was open to the MTO to take the position that it was entitled to costs: para. 17, citing para. 9 of Kavanagh v. the Estate of Pierrette Feihl, 2016 ONSC 7886, where the court noted that seeking costs might be appropriate where the plaintiff’s claim was frivolous, vexatious, or pursued in bad faith. Kavanagh is a case where the plaintiff served a notice of discontinuance but the defendant proceeded with its motion for summary judgment anyway.
[37] At paragraphs 19 and 20 of Nesbitt, the court noted:
[19] A mere five days after receiving the answer to the question taken under advisement at the MTO representative’s examination, Jeffrey offered to discontinue the third party action. Seemingly ignoring this clear signpost that the main action was over, and that Jeffrey was offering to shut the third party claim down, the MTO continued to work on the file. For example, it took no steps to end the retainer with the expert it had engaged just two weeks before Jeffrey’s offer to dismiss. The MTO’s bill of costs is approaching $30,000, fifty percent of which is comprised of the cost of this needless report.
[20] I find it was not reasonable for the MTO to insist on its costs in this instance. There was nothing frivolous or vexatious about Jeffrey’s third party claim against the MTO. Nor was the third party claim pursued in bad faith. Being brought into a lawsuit in instances where road conditions may have played a factor is eminently reasonable. Awarding costs to the MTO to assuage its frustration could serve to cast a chill over future claims against it.
[38] The court in Nesbitt ordered costs in favour of Jeffery.
[39] In my view, where the plaintiff seeks to discontinue or dismiss her claim, a defendant is not only entitled to costs where the plaintiff’s claim is frivolous, vexatious, or pursued in bad faith. Bad faith or the existence of a frivolous or vexatious claim are factors the court can consider, but they are not a pre-requisite to costs.
[40] Ashley submits that it was reasonable to commence the claim against Terrence who was the driver of the vehicle in which she was a passenger, that the action was complicated by her having been involved in another accident, because she and her sister were minors for many of the years the action was extant and settlement required court approval, and the lack of cooperation from her previous counsel in turning over the file. I agree.
[41] Ashley submits that there was no undue delay and that the action moved forward at a regular and steady pace over the years. She points to a settlement being reached shortly after discoveries which was ultimately not approved by the court. She submits that it has been known for some time that she would not pursue the claim against Terrence, but that other issues had to be addressed first. Ashley further notes the stay of proceedings against Terrence was in effect since 2019. She submits that the steps taken by Terrence after January 2019, when he was “excused” from further attendances, were all unnecessary.
[42] Further, Ashley submits that she is of limited means; she has a brain injury, has no assets, and is on ODSP. There is no evidence to the contrary. In extraordinary cases and if established, impecuniosity may be a factor a court can consider in the exercise of its discretion: Mayer et al. v. 1474479 Ontario Inc. et al., 2014 ONSC 2622, para 99.
[43] This action was active for 15 years. Ashley did not serve a notice of discontinuance or seek a dismissal of the claim against Terrence after the attempt to do so in 2017 failed. Although Ashley stated that she did not intend to pursue the claim against Terrence, she took no steps to bring that claim to an end until faced with Terrence’s motion to dismiss. Ashley reached the age of majority in 2021. She did not take steps to remove the litigation guardian until the eve of the motion to dismiss for delay two years after being directed to do so by Nightingale J. She did not take steps at any time to lift the stay against Terrence and obtain an order to continue despite being directed to do so by the court. Ashley took no steps to follow up on the apparent insufficiency of the evidence of her damages which prevented the resolution of the claim against Terrence in 2017. Given all of this, it was not unreasonable for Terrence to remain involved in the action.
[44] I conclude that Terrence is entitled to some costs of the action but not all the partial indemnity costs he seeks. In coming to this conclusion, I consider that it was reasonable to commence the claim against Terrence and some costs would have been incurred by Terrence even if the action had settled against him at a much earlier stage. I am mindful of the complexity of the proceedings and the issues encountered in obtaining the file from Ashley’s prior lawyers. However, this alone does not explain the long delay and the failure of Ashley to take steps when directed by the court to do so, notwithstanding that she wrote to tell the court why she was not going to take those steps. A reduction in costs also takes into account Ashley’s limited means.
[45] The hourly rates claimed are very reasonable but the way the bill of costs was prepared makes it impossible to accurately determine what costs were incurred for what and when. I cannot discern what costs were incurred after May 2017. There also appears to be duplication of work.
[46] Having considered all the above, I find that it is fair and reasonable that Ashley pay costs to Terrence for the action fixed in the amount of $3,250 inclusive of HST and disbursements.
[47] I turn now to whether costs should be awarded against Ashley’s lawyers.
Costs Against Lawyers Personally
[48] The principles governing costs personally against a lawyer were reviewed in Galganov v. Russell (Township), 2012 ONCA 410, paras 12-22 and include:
a. a lawyer whose conduct results in costs being incurred unreasonably, or wasted, may be deprived of his or her costs or required to pay the costs of any other party (r.57.07(1));
b. the legal test under r. 57.07(1) is not concerned with a lawyer’s professional conduct generally, but whether such conduct, including the conduct of the litigation, caused unreasonable costs to be incurred;
c. if it is shown that the lawyer is responsible for repetitive and irrelevant material and excessive motions and applications, characterized the proceedings in which they were involved, and that the lawyer acted in bad faith in encouraging this abuse and delay;
d. costs against lawyers are designed to protect and compensate a party who has been subjected to costs being incurred without reasonable cause, not to punish a lawyer;
e. negligence can attract costs consequences in addition to actions or omissions which fall short of negligence;
f. rule 57.07(1) requires an examination of “the entire course of litigation that went on before the application judge so that the application judge can put in proper context the specific actions and conduct of counsel”;
g. Although the conduct as a whole must be considered, a court must also consider specific incidents of conduct in determining whether the conduct falls within r. 57.07(1); and
h. the “extreme caution” principle means that these awards must only be made sparingly, with care and discretion, only in clear cases, and not simply because the conduct of a lawyer may appear to fall within the circumstances described in r. 57.07(1).
[49] The first step is to determine whether the lawyer’s conduct falls within r. 57.07(1) in the sense that the lawyer caused costs to be incurred unnecessarily: Galganov v. Russell (Township), 2012 ONCA 410, para 18; Carleton v. Beaverton Hotel, para 21.
[50] The second step is to consider, as a matter of discretion and applying the extreme caution principle, whether in the circumstances, the imposition of costs against the lawyer personally is warranted: Galganov v. Russell (Township), 2012 ONCA 410, para 22; Carleton v. Beaverton Hotel, para 21.
[51] In his factum, Terrence references the following conduct, which he asserts entitles him to an award of costs against Ashley’s current lawyers:
a. Ashley’s lawyers advised on July 29, 2022, that they would bring a motion to get off the record. As a result, Terrence delayed bringing the motion to dismiss the action.
b. Shortly before the original return date of the dismissal motion, Ashley’s lawyers took the position that they were no longer acting as lawyer of record and that the motion materials had to be personally served on Ashley and that the order to continue had not been obtained.
c. Ashley’s lawyers never proceeded with the motion to be removed as lawyers of record.
d. As a result of the above, Terrence incurred unreasonable costs in pursuing the dismissal motion.
[52] In oral submissions, Terrence clarified that he is only seeking costs against Ashley’s lawyers for the costs arising out of the adjournment of the motion from February 15, 2024, to April 18, 2024. He conceded that this amounted to three hours of time at $175 plus HST on a full indemnity basis.
[53] In oral submissions, Terrence reiterated that there were repeated delays in proceeding with the motion to be removed as lawyers of record for over a year and a half. He reminded the court that Ashley’s lawyers waited until the day before the motion to dismiss to raise certain objections to the motion and then advised the court at the motion that they were on a limited retainer.
[54] Ashley’s lawyers have tendered evidence that before the initial return date of the motion to dismiss they sought an adjournment to allow settlement discussions to continue with the main defendants in both actions. Terrence responded that he would proceed with the motion. They submit that any costs incurred because of the adjournment are a result of Terrence’s refusal to agree to a reasonable adjournment request.
[55] The conduct complained of by Terrence does not come close to repetitive and irrelevant material and excessive motions and applications or bad faith in encouraging such abuse and delay for which Ashley’s current lawyers are responsible. Nor does the evidence satisfy me that Terrence has incurred unreasonable costs without reasonable cause. Adjournments of motions on their first date occur routinely. A reasonable request was made to adjourn the motion in advance of the motion. Finally, I bear in mind the extreme caution principle that costs against lawyers must only be made sparingly, with care and discretion, only in clear cases, and not simply because the conduct of a lawyer may appear to fall within the circumstances described in r. 57.07(1). This is not such a clear case. There shall be no costs against Ashley’s lawyers personally.
Costs of the Motion to Dismiss
[56] Terrence seeks his costs of the motion to dismiss on a partial indemnity basis in the amount of $3,713.41 inclusive of HST and disbursements. These costs are to the conclusion of the motion appearance on April 18, 2024. They do not include costs for what transpired after the April 18, 2024 motion attendance, including preparing for and attending the hearing on costs before me. However, Terrence confirmed that he is not seeking these additional costs.
[57] Terrence has provided a costs outline. I do not have a bill of costs or costs outline from Ashley on the motion. Ashley submits that her partial indemnity costs are $5,000 all inclusive. In her written submissions she seeks her costs of the motion.
[58] For the reasons reviewed above, it was not unreasonable for Terrence to move to dismiss the action for delay when he did – he had waited 7 years since the last and only attempt to dismiss the action was not successful. He gave notice to Ashley many months in advance of the motion. The motion was first suggested to Ashley by Terrence almost two years before it was heard. It was the motion which precipitated the ongoing negotiations to settle the actions, the steps taken by Ashley to remove the litigation guardians, and the consent to the dismissal of Ashley’s action against Terrence.
[59] Terrence was partly successful on the motion. The action was dismissed on consent, the stay was lifted, and he has obtained some costs in the action. However, he was unsuccessful on the issue of costs against the lawyers. The way the materials were drafted suggested that significant costs were sought against the lawyers. This was an important issue to the lawyers which required a response. It was not until oral submissions that Terrence clarified that he was only seeking costs thrown away on the adjournment in the amount of $575.00 plus HST on a full indemnity basis. Terrence’s costs for his success on the issue of costs in the action is set off against the costs that would flow from his failure on the issue of costs against the lawyers.
[60] Having considered the factors which impact the exercise of my discretion and the partial success on the motion, I find that $1,725 inclusive of HST and disbursements is a fair and reasonable amount of costs to which Terrence is entitled for the motion.
Disposition
[61] In conclusion, I make the following orders:
a. There shall be an order to continue the action and to lift the stay against Terrence so that the remaining issue of costs may be addressed;
b. Ashley shall pay Terrence his costs of the action on a partial indemnity basis fixed in the amount of $3,250 inclusive of HST and disbursements; and
c. Ashley shall pay Terrence his costs of the motion to dismiss on a partial indemnity basis fixed in the amount of $1,750 inclusive of HST and disbursements.
Released: June 27, 2025
M. Bordin