Discretion to Depart from R.49 Costs Presumption Not Unfettered: ONCA
Does a trial judge have absolute, unfettered discretion in awarding the costs of a proceeding? To what extent does the fact that one of the parties made an offer to settle play a role in fettering the trial judge’s discretion?
In Barresi v. Jones Lang Lasalle Real Estate Services Inc., 2019 ONCA 884, the Court of Appeal for Ontario (Feldman, Fairburn and Jamal JJ.A.) held that, “The discretion to depart from the presumption as to costs in r. 49.10(1) is not unfettered and must be exercised in accordance with the purpose of the rule.” The case thus stands as an important reminder of the import of that rule.