CITATION NO.: T.H. v. M.L. et al., 2026 ONSC 2050
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: T.H., Plaintiff
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M.L. and I.L., Defendants
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T.D. and W.H., Third Parties
BEFORE: MacNeil J.
COUNSEL: Gillian Hnatiw and Leigh Clark – Lawyers for the Plaintiff (Moving Party) Peter Regan – Lawyer for the Defendant, I.L. (Responding Party) Michael H. O’Brien – Lawyer for the Defendant, M.L. (Responding Party) Jeffrey LeRoy – Lawyer for the Third Party, T.D.
DECISION ON COSTS
1This is my decision on costs respecting the Plaintiff’s motion for directions seeking a declaration that the agreed summary of facts placed before the court at M.L.’s guilty plea are binding facts on the parties in this civil litigation and an order prohibiting the parties from adducing any evidence contrary to the agreed summary of facts. By my decision released December 5, 2025, I concluded that the doctrine of abuse of process applied to preclude the parties from relitigating or adducing any evidence contrary to M.L.’s conviction and the underlying facts that supported the conviction but that the doctrine did not apply to preclude the parties from relitigating the ancillary facts found in the agreed summary of facts.
2The parties were unable to settle the issue of costs of the motion. They have filed written submissions setting out their positions in respect of same.
General Principles
3Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 provides that an award of costs is in the discretion of the court.
4Rule 57.01(3) of the Rules provides that, when the court awards costs, it shall fix them in accordance with subrule (1) and the Tariffs. Tariff A establishes the fees and disbursements that are allowable under Rules 57.01 and 58.05.
5Rule 57.01(1) sets out factors to be considered by the court in exercising its discretion to award costs, including:
the result in the proceeding;
any offer to settle or to contribute made in writing;
the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;
the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;
the amount claimed and the amount recovered in the proceeding;
the complexity of the proceeding;
the importance of the issues;
the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;
whether any step in the proceeding was: (i) improper, vexatious or unnecessary, or
(ii) taken through negligence, mistake or excessive caution;
a party’s denial of or refusal to admit anything that should have been admitted; and
any other matter relevant to the question of costs.
6Rule 1.04(1.1) provides that, in applying the rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.
7Modern costs rules are designed to advance five main purposes: (1) to indemnify successful litigants for the cost of litigation, although not necessarily completely; (2) to facilitate access to justice, including access for impecunious litigants; (3) to discourage frivolous claims and defences; (4) to discourage and sanction inappropriate behaviour by litigants; and (5) to encourage settlements: Fong v. Chan, 1999 2052 (ON CA), 1999 CarswellOnt 3955, 128 O.A.C. 2 (Ont. C.A.), at para. 22; 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 7238, at para. 10.
8Ultimately, in fixing costs, the primary principles remain fairness, reasonableness and proportionality.
9As stated by the Ontario Court of Appeal in Boucher v. Public Accountants Council (Ontario) (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (Ont. C.A.), at para. 26, when fixing costs, the calculation of hours and time rates is only one factor to be taken into account. The overall objective is “to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant.” (See also Zesta Engineering Ltd. v. Cloutier, 2002 25577 (ON CA), 2002 CarswellOnt 4020, [2002] O.J. No. 4495 (Ont. C.A.), at para. 4.)
Position of the Plaintiff
10The Plaintiff requests that costs of the motion be reserved to the trial judge for determination. At Trial Readiness Court, Goodman J. ordered the Plaintiff to bring this motion in order to narrow down the issues at trial. The motion advanced the action in this regard. However, given the interconnected nature of the issues of causation, liability and damages and the legal questions yet to be determined, including the application of the Victims’ Bill of Rights, the trial judge will be in the best position to determine costs of the motion in the overall context of costs of the action. The Plaintiff submits that the work done in preparation for the motion will be used by the parties at trial and the fees incurred will also be relevant to the trial’s outcome. Finally, the Victims’ Bill of Rights presumptively entitles victims of crime to costs on a substantial indemnity basis in related civil proceedings. The impact of the Victims’ Bill of Rights on costs awards against I.L. and/or M.L. must be considered in that broader context.
11In the alternative, the Plaintiff seeks partial indemnity costs in the amount of $14,752.94. Prior to the motion, M.L. denied every single admission from the agreed summary of facts filed in the criminal proceeding, except that they had sexually assaulted the Plaintiff. I.L. refused to admit that the Plaintiff had been sexually assaulted by M.L. at all. The Defendants’ positions on relitigating the conviction were not articulated until their motion materials were delivered for this motion in mid-October 2025, more than five years after the claim was initiated. The Plaintiff should not have had to proceed “in the dark” for all that time until the cusp of trial. The trial has been adjourned twice to accommodate the motion. A costs award in the Plaintiff’s favour upholds the objectives of the Victims’ Bill of Rights and reflects the principles of compassion and fairness, as well as the goals of preventing further suffering and not discouraging victims of crime from participating in the justice system.
12With respect to I.L.’s request for costs thrown away, it is the Plaintiff’s position that they are not entitled to such an award. There are two circumstances when costs thrown away may be sought: (i) where an adjournment was the fault or responsibility of a party; or (ii) where an adjournment resulted from other factors (such as court scheduling problems or a shortage of available judges): Syed v. Petrie, 2020 ONSC 2513, at para. 19; Furr v. Duhamel, 2017 ONSC 4623, at paras. 11-13. Here, it was the Defendants who requested an adjournment of the November 2025 trial because they had not received the decision in the within motion. Counsel for the Plaintiff’s had strongly opposed any adjournment. Awarding costs thrown away against the Plaintiff in these circumstances would be grossly unfair and unsupported by law. Finally, it is not appropriate for I.L. to seek costs for hypothetical delays relating to a motion seeking leave to appeal which has yet to be granted.
Position of the Defendant I.L.
13The Defendant I.L. seeks their costs of the motion on a partial indemnity basis in the amount of $10,027.62, together with costs thrown away in the amount of $13,040.47 as a result of the trial being adjourned and the Plaintiff’s subsequent appeal of the motion decision.
14I.L. submits that they were wholly successful on the motion. They had not sought to undermine the essential facts underlying M.L.’s criminal conviction. Their position was narrowly confined to resisting being bound by ancillary facts in the criminal agreed summary of facts, particularly those relating to the timing and frequency of the alleged abuse. The court accepted I.L.’s position in this regard. The time and expense incurred by I.L. in responding to the motion were necessary in order to preserve a central defence at trial respecting the allegation made that I.L. knew of the abuse while it was ongoing.
15Costs thrown away are meant to indemnify a party for trial preparation that has been rendered wasted by an adjournment: Caldwell v. Caldwell, 2015 ONSC 7715, at para. 8. They are commonly awarded on a full recovery basis. In determining costs thrown away, the focus is on whether the work has lost its enduring value as a result of the adjournment. As a result of the late motion and subsequent appeal, the trial of this matter would likely not be able to proceed until after April 2026. From the outset of the litigation, I.L. has consistently denied that they are bound by anything contained in M.L.’s guilty plea. This issue should have been addressed years ago.
16Counsel for I.L. spent time preparing for examinations and cross-examinations for trial, work that will need to be substantially redone before the trial ultimately proceeds. While some notes may retain limited use, much of the preparation has been rendered stale by the delay. Accordingly, I.L. seeks costs on a partial indemnity basis only.
17While the Plaintiff relies on s. 4(6) of the Victims’ Bill of Rights to claim entitlement to her legal costs, this section only applies to persons convicted of a crime. It does not apply to an uninvolved party like I.L.
Position of the Defendant M.L.
18The Defendant M.L. seeks their partial indemnity costs in the amount of $4,576.50, inclusive of HST.
19M.L. submits that they were successful on the motion. The length, frequency and nature of damages were pleaded in their statement of defence, so it was clear that they were at issue. M.L. asserts that the criminal proceeding made it clear that they were “not accepting, in whole, the so called agreed Statement of Facts” and their counsel had advised that M.L. had no memory due to alcoholism.
Analysis
20Rule 57.03(1) of the Rules of Civil Procedure provides that, unless the court is satisfied that a different order would be more just, the court shall fix the costs of a contested motion and order that they be paid within 30 days.
Costs of the Motion
21For the following reasons, I find that it would be appropriate for costs of this motion to be reserved to the trial judge.
22The motion sought directions for trial. In the Decision released December 5, 2025, I gave directions about the scope of the evidence that could be adduced at the trial. The issues between the parties will be fully litigated at trial. I accept the Plaintiff’s submission that the outcome of the trial is likely to impact on the entitlement to costs having regard to all of the circumstances, including whether the allegations raised are proven and the outcome of the proceeding. The trial judge will be best placed to assess these costs in the context of the final disposition of the action.
Costs Thrown Away
23I.L. seeks their costs “thrown away”. In the written costs submissions, their counsel contends that “the defendant spent 53.9 hours preparing for examinations and cross-examinations for trial” and this is work that will need to be “substantially redone” when the new trial date ultimately proceeds.
24I agree with the submission of Plaintiff's counsel that, since it is not yet known if the trial will proceed during the April 2026 sitting, it is hypothetical to say that the preparation costs are substantially wasted because the preparation will be stale-dated.
25I also note that it was the Defendants’ who requested an adjournment of the trial at the Trial Readiness Court held on November 10, 2025, because my decision on the motion had not yet been released. As set out in the Decision, the main action and the third party claim had been originally set down for trial during the September 8, 2025 sitting. However, at a “continuing trial readiness appearance” held on August 29, 2025, Goodman J. adjourned the matter to the motion for directions and traversed the trial to the November 17, 2025 sitting. This was done so that the evidentiary issue respecting the agreed summary of facts could be determined before trial and so that a more accurate estimate of the number of days required for trial could be ascertained, depending on the outcome of the motion for directions. The Plaintiff served her motion materials on October 10, 2025 and the last of the responding factums was delivered on October 21, 2025. The motion was then heard on October 27, 2025, three weeks before the trial sitting commencing on November 17, 2025. In these circumstances, in my view, it was the timing of the motion that caused the need to adjourn the trial. While the evidentiary issue should have been raised earlier in the proceeding than it was, it is not clear to me that any particular party is to be blamed that it was not raised sooner. Hindsight can be 20/20.
26I accept and adopt the holding by the court in Syed v Petrie, 2020 ONSC 253, at para. 19, to the effect that, where the request for an adjournment of a trial is neither the fault nor responsibility of either party, both parties may be excused from any cost consequences.
27It is also not clear to me what trial preparation happened and when, as the court was not provided with detailed dockets from I.L. The brief chart that was submitted contains two line-items which read: (i) trial preparation - review and analysis of evidence, discovery transcripts, expert reports, and chronology; and (ii) attending pre-trial readiness court on November 10, 2025. It does not appear that any witnesses were prepared for examination or cross-examination. In my view, not all of the stated trial preparation work will have to be redone since, presumably, the lawyer would have prepared written notes during the course of his review of the materials. It is primarily then those written materials that will have to be reviewed again once the trial nears. With respect to the attendance on November 10, 2025, that was a required attendance in any event.
28Accordingly, I dismiss I.L.’s request for costs thrown away due to the adjournment of the trial.
Disposition
26For the foregoing reasons, this court orders that:
(a) the costs of the motion for directions are reserved to the trial judge; and
(b) the Defendant I.L.’s request for costs thrown away is dismissed.
MacNEIL J.
Released: April 7, 2026