Sepideh Nassabi

Following dismissal of a civil action as res judicata and statute-barred under the Limitations Act, the successful defendant sought costs of the entire proceeding.

The plaintiff argued the requested costs were excessive compared to a prior draft costs outline prepared for an earlier motion.

Applying Rule 57.01 of the Rules of Civil Procedure and s. 131 of the Courts of Justice Act, the court reviewed the parties’ submissions and considered proportionality.

The court found the defendant’s partial indemnity rates reasonable and awarded a reduced lump sum for the action.

Costs were fixed at $7,500 inclusive of disbursements and HST.

The plaintiff brought a motion seeking a ruling that her action should proceed to trial and not be dismissed on a forthcoming summary judgment motion.

The defendant argued that the claim was barred by res judicata, issue estoppel, abuse of process, and the Limitations Act because the same issues had already been adjudicated in a prior action concerning the construction of a residential property.

The court found that the plaintiff was attempting to relitigate factual and legal issues previously determined and that the new action was also commenced outside the applicable two-year limitation period.

Applying principles of proportionality and the culture shift endorsed in Hryniak v. Mauldin, the court determined that further motion proceedings would serve no useful purpose.

The action was dismissed immediately as an abuse of process.