Case information

Civil Procedure – Costs – Trial judge dismissing applicants’ action and ordering them to pay costs – Court of Appeal allowing applicants’ appeal in part and reducing the trial costs payable by the applicants – Court of Appeal dismissing applicants’ subsequent motion to set aside, amend, or vary its order concerning trial costs – Whether imposing a distributive costs order on a successful plaintiff is inappropriate under the Canadian law of costs – Whether requiring successful plaintiffs to pay costs creates unfair barriers to access to justice – Whether it is a breach of the principles of fundamental justice and procedural fairness for a court to make an adverse costs order against a plaintiff without hearing submissions or giving reasons on costs – Whether it is a breach of the principles of fundamental justice and procedural fairness for a court to deny a successful plaintiff ‘s request to appear before the court to make costs submissions prior to the signing of a costs order – Rules of Civil Procedure, R.R.O. 1990, Reg. 194, R. 59.06

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Applicants James Bowen and Jonathan Wiesblatt were employed by respondent JC Clark Ltd. (hereafter, “JC Clark”). In 2014, JC Clark terminated the applicants without cause, paying them a certain amount in lieu of notice. The applicants commenced an action against JC Clark, seeking performance fees that they claimed they were owed.

The trial judge dismissed the applicants’ claim and ordered them to pay costs to JC Clark. The Court of Appeal allowed the appeal in part, holding that the applicants were each entitled to a pro-rated discretionary bonus. However, the Court of Appeal found no error in the trial judge’s conclusion that the applicants were not entitled to performance fees from JC Clark. The Court of Appeal reduced the trial costs award payable to JC Clark by approximately half.

The applicants then brought a motion to set aside, amend, or vary the Court of Appeal’s order concerning trial costs. The applicants sought an order that trial costs be awarded to them rather than to JC Clark. The court dismissed the motion.