The Ontario Court of Appeal Addresses Unsupported Adjournment Requests and the Basis For Appealing a Discretionary Cost Award

In the recent decision of Sokil v. Buffone[1], the Ontario Court of Appeal succinctly dealt with and dismissed the appeal of a contempt and costs order, as well as unsupported requests for adjournments brought by the appellant.

The appellant was named as an alternate executor for the deceased and an equal 1/3 beneficiary of the estate. The appellant further resided in a property owned by the estate.

Following an application for directions, the Honourable Justice Cavanagh, amongst other things, appointed an Estate Trustee During Litigation (“ETDL”) and granted them leave to issue a writ of possession in respect of the property.

The ETDL brought a motion that sought primarily to find the appellant in contempt and secure immediate possession of the property (the “Contempt Order”). The order was granted, and the appellant was required to vacate the property at an earlier date and pay costs in the amount of $18,000.

The appellant appealed the Contempt Order and proceeded to seek multiple unsupported adjournments. While the initial adjournment request was consented to by the ETDL, further requests were opposed.

At the hearing of the appeal, the appellant failed to appear, and the court refused to grant her any further adjournment for failing to support her request and merely attempting to delay a determination of the issue.

The court then considered the basis for granting leave to appeal a cost order, citing Brad-Jay Investments Limited v. Village Developments Limited (2006), 2006 CanLII 42636 (ON CA) for the position that there must be “strong grounds upon which the appellate court could find that the judge erred in exercising his discretion.”

Refusing to find any basis to interfere with the Contempt Order, the court refused leave and dismissed the appeal, ordering to the appellant to pay costs on a partial indemnity scale in the amount of $8,492.44.

Commentary

By way of commentary, this decision by the Ontario Court of Appeal to award costs on a partial indemnity scale despite the appellant’s contempt of court orders and failure to appear at the hearing speaks to the nuanced approach required under the blended cost orders in estate litigation.

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[1] Sokil v. Buffone, 2024 ONCA 127.

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