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Civil Litigation Dicta - Costs - Novelty of Cause of Action. Davies v. Clarington (Municipality)
In Davies v. Clarington (Municipality) (Ont CA, 2023) the Court of Appeal considered the novelty of a cause of action as it influences a cost award:[88] The trial judge refused to award costs on the basis that the issue was novel, which is an accepted principle on which a judge may make a no costs disposition: Przyk v. Hamilton Retirement Group Ltd. (The Court at Rushdale), 2021 ONCA 267, 70 C.P.C. (8th) 219, at para. 35.
[89] The trial judge referred to the correct principles about how to assess whether an issue is novel, and how to apply that assessment to a discretionary decision concerning costs, as articulated by this court in Das v. George Weston Limited, 2018 ONCA 1053, 43 E.T.R. (4th) 173, leave to appeal refused, [2019] S.C.C.A. No. 69. As that decision explains, whether an issue is novel is not a bright line but a matter of degree, and the effect on costs is a question of where the court considers the case to fall along a spectrum. The trial judge was intimately familiar with the nature of the issues and arguments before him and thus well positioned to decide where on the spectrum of novelty this case fell.
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