The action arises out of the sexual assaults the plaintiff alleges he suffered at the hands of the defendant Father Horwath and the defendant Tony Doe, an employee of Maryvale. After a trial, a successful appeal by the defendants, and a dismissal of the plaintiff’s leave to appeal to the Supreme Court, the plaintiff owed the defendant $51,500 in total costs (the “Costs Orders”). As a result of the appeal, the matter was sent back for a new trial.
Prior to the new trial being commenced, the defendants brought a motion to dismiss the action as a result of the plaintiff’s failure to pay the costs awards before Master Jolley (as she was known then).
HELD: The motion was dismissed, and the action was allowed to continue. The judge found that to dismiss this plaintiff’s action at this stage would be unjust, even despite the outstanding costs order.
The plaintiff raised three arguments in response to the motion. (1) First, that the court had no jurisdiction to stay or dismiss the action under Rule 57.03 as the Costs Orders did not arise out of contested motion. (2) Second, that the motions judge had no jurisdiction to stay or dismiss the action under Rule 60.12 as the Costs Orders are not interlocutory orders. (3) Third, he argues that, as the Costs Orders were silent as to payment, they are not due and are not in default.
Master Jolley agreed that the court did not have jurisdiction under either of the Rules plead to make the order sought. Rule 57.03 deals specifically with the cost consequences on contested motions. Rule 60.12 deals specifically with the cost consequences on interlocutory motions. In this case, none of the costs awarded arose from contested or interlocutory motions.
In the alternative, Master Jolley determined that even had the court had jurisdiction, she would not have found staying or dismissing the action a just decision. First, the Court of Appeal did not require that costs be paid in order for the plaintiff to proceed with his new trial. Second, because the subject costs were not ordered as sanctions for improper conduct. Third, the claim was not devoid of merit and so should not be stopped from proceeding. Fourth, the plaintiff is not seeking exemption from the costs order, and cost were still due payable. Accordingly, the motion was dismissed.
