Rarotonga, 2010

Simon Shields, LLB

Online Lawyer (Ontario)

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Prior Legal Costs as Damages

In Salasel v Cuthbertson (Ont CA, 2015) the Court of Appeal considered whether a plaintiff was precluded from claiming actual legal costs of a prior proceeding (to the extent that the earlier court had not awarded them) as damages in a subsequent proceeding. The lower court held that the earlier court's cost award set up an issue estoppel against such a claim:
[22] .... I see no error in the conclusion of the motion judge that issue estoppel applied to bar the appellants’ claim in this action for the recovery of “extra costs” incurred in the Prior Proceedings or in his dismissal of the appellants’ claim for their “extra costs” as special damages under Rule 21.01(3)(d) because it was frivolous, vexatious or otherwise an abuse of the process of the court.


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