Friday, May 4, 2012

Impecuniosity a factor to consider when determining consequences of failure to pay costs

Tarion Warranty Corporation v. 1486448 Ontario Inc., 2012 ONCA 288 is a useful source for the proposition that impecuniosity is a factor to consider (even if not dispositive) when determining the consequences of failing to pay costs:


 [6]          In our view, the motion judge erred in law by interpreting Burrell v. Peel (Regional Municipality) Police Services Board (2007), 48 C.P.C. (6th) 349 (Ont. S.C.), as standing for the proposition that impecuniosity is not a relevant factor in determining the consequences of a party’s failure to pay a costs order.  As Master Dash makes clear, while standing alone, lack of funds cannot justify a failure to pay costs, evidence of impecuniosity is a factor to take into consideration.   As is always the case when there are competing interests, the goal is to strike a balance.  Here, the competing interests are allowing an impecunious litigant the opportunity to have his or her potentially meritorious claim adjudicated upon, and enforcing court orders.  See also Augier v. O’Reilly, 2011 ONSC 4583, [2011] O.J. No. 3468, at para. 20.


No comments: