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Civil Litigation Dicta - Costs - Distributive. 1711811 Ontario Ltd. v. Buckley Insurance Brokers Ltd.
In 1711811 Ontario Ltd. v. Buckley Insurance Brokers Ltd. (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, here regarding an express easement grant.
Here the court considered 'distributive' costs awards, those made by considering success on each of several issues in turn:[72] I would reject the Paiva appellants argument that the trial judge committed an error of principle in making a “distributive” costs award. The Paiva appellants rely on Armak Chemicals Ltd. v. Canadian National Railway Co. (1991), 1991 CanLII 7060 (ON CA), 5 O.R. (3d) 1 (Ont. C.A.), at paras. 13, 19-20, where this court stated that distributive cost awards (which involve issue-by-issue assessments of success) are to be approached with caution.
[73] As this court has stated often since Armak Chemicals, as a general rule, “costs are not to be determined by considering success on an issue-by-issue basis”: Fram Elgin Mills 90 Inc. v. Romandale Farms Limited, 2021 ONCA 381, at para. 10. Rather, they are to be based on the overall success achieved by a party. In my view, this is precisely what the trial judge did. As set out above, he concluded, “[t]he [Buckley Group] were the more successful party and they are entitled to their costs.” (Emphasis added.)
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