Background
Peninsula Employment Services Ltd. appealed an order that had permanently stayed proceedings. The appeal concerned, among other matters, the effect of a change in the law occurring after the motion judge released the decision.
The Court of Appeal set aside the permanent stay and remitted the stay motion for reconsideration. It did not accept Peninsula’s request to determine that no abuse of process had occurred. The respondents also successfully opposed Peninsula’s request for an appellate order concerning a disclosure/Anton Piller issue.
The Court’s Holding
In this costs decision, the Court of Appeal ordered each party to bear its own costs of the appeal because success was divided. Peninsula succeeded in having the permanent stay set aside, but did not obtain a ruling eliminating the abuse-of-process issue; the stay motion therefore remained to be reconsidered.
The costs of the original stay motion were reserved to the judge rehearing it. If the respondents abandon that motion, the costs below are to be determined together with the costs of the abandoned motion to which the respondents are entitled under rule 37.09(3) of Ontario’s Rules of Civil Procedure.
Key Takeaways
- Divided success on appeal supported a no-costs order for either side.
- Setting aside a stay did not resolve whether abuse of process occurred.
- Costs of the original stay motion were reserved pending rehearing or abandonment.
Why It Matters
The decision illustrates that appellate success on a central issue does not necessarily produce a costs award where other material issues remain unresolved or were decided against the appellant.
It also preserves flexibility for the rehearing judge to assess costs in light of the full course of the renewed stay proceeding.