Plaintiff failed to appear in court but costs award would have 'deleterious effect'
The Ontario Court of Appeal has refused to award costs in favor of the respondents in an abandoned appeal because the award would have a “deleterious” effect on the plaintiffs.
In Land v. Dryden (Police Services Board), 2022 ONCA 484, Jonathan Land filed an appeal which was scheduled to be heard on June 17 at 10 a.m. The parties indicated in their counsel slips that they would attend remotely. However, the plaintiffs, Jonathan Land and Stephanie Flora Henry, as well as their lawyers, failed to appear in court on the scheduled day of the hearing.
The Court Registrar called Land’s number, but it had been disconnected. The Court Registrar also sent an email to Land and received no response. The court noted that on the day prior to the scheduled hearing, the respondent, Dryden Police Services, sent an email to Land, which included his Bill of Costs. Land sent a confirmation that he had received the mail. Land’s email address was the same one that the Court Registrar had used to communicate with him when he failed to appear in court on the day of the scheduled hearing.
The court proceeded to dismiss Land’s appeal, ruling that it had been abandoned. After the decision was prepared, the plaintiffs contacted the court on the afternoon of the same day of the scheduled hearing. The plaintiffs asserted their intent to argue the appeal. However, the court said that they must bring a motion in writing if they wish to re-list the matter for hearing.
The respondent Dryden Police Services claimed costs in the amount of $10,000. The other respondent, Anishinaabe Family Services, likewise claimed costs of approximately $7,000.
The court said that in the normal course, the respondents would be entitled to costs claimed which were not unreasonable. Since the appeal was dismissed for having been abandoned, the court recognized that preparations and costs were wasted due to the non-appearance of the plaintiffs at the scheduled hearing. However, the court noted that the records clearly indicated that the plaintiffs did not have the ability to pay and, as a result, the costs award would have a deleterious effect on them.
The court concluded that the respondents were only entitled to nominal costs in the amount of $1,500 for Dryden Police Services and $750 for the Family Services.
