Is a party entitled to costs even if it succeeds in its motion to obtain an indulgence?
Ontario, Canada
The following excerpt is from Cascades Canada ULC v. 2222985 Ontario Inc., 2021 ONSC 7133 (CanLII):
I find the plaintiff filed its trial record on time and the defendants’ motion is dismissed. The plaintiff was successful and there is no reason that costs should not follow the event. There is no general rule that a party seeking an indulgence is not entitled to costs if they succeed. Echoing JPW Niagara Limited v. Sullivan Mahoney Lawyers et al 2020 ONSC 6762 at paragraph 10, were the defendants to be awarded costs regardless of the outcome of the motion, that would “allow responding parties to take unreasonable positions because there is no risk of costs being awarded against them”.
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