Background
Maxine McClory appealed a decision by Justice Brian Dubé dismissing her application requiring Marion Laird and Christopher Pehlke to pass accounts related to their late mother’s property. The application judge had dismissed the application and awarded costs of $13,000 to the respondents.
McClory appealed the dismissal. The respondents filed responding materials in advance of the appeal hearing. However, on June 23, 2026—the eve of the scheduled hearing—McClory delivered a notice of abandonment of her appeal.
The Court’s Holding
The Court of Appeal found that McClory’s abandonment of the appeal triggered a presumptive entitlement to costs for the respondents under Rule 61.14(3) of the Rules of Civil Procedure. Because the abandonment occurred after the respondents had invested resources by preparing responding materials, the court fixed the respondents’ costs of the abandoned appeal at $7,102.05.
The respondents sought leave to cross-appeal the application judge’s costs award, arguing that full indemnity costs were warranted rather than the $13,000 awarded. The court unanimously rejected this, finding no reversible error in the application judge’s discretionary decision and holding that the respondents had failed to meet “the very high hurdle” required to obtain leave to appeal a trial judge’s costs order. Leave to cross-appeal was denied.
McClory was entitled to costs of the unsuccessful cross-appeal motion, fixed at $1,500. Offsetting this against the appeal costs owed to the respondents left a net amount due of $5,602.05, payable within 30 days.
Key Takeaways
- Abandoning an appeal on the eve of hearing, after the responding party has filed materials, triggers a presumptive entitlement to costs under Ontario’s Rules of Civil Procedure.
- Trial judges’ discretionary costs awards are difficult to overturn on appeal; appellate courts will not interfere absent a reversible error.
- The mere fact that full indemnity costs were not awarded does not provide grounds for leave to cross-appeal a trial judge’s costs decision.
Why It Matters
This decision reinforces important procedural principles in Ontario appellate practice: that abandoned appeals at a late stage expose the abandoning party to costs liability, and that costs awards at trial are largely within a trial judge’s discretion and are seldom successfully challenged on appeal. The case illustrates the practical consequences of late procedural decisions and the deference appellate courts accord to trial judges on costs matters.