Executive Summary: Key Legal and Evidentiary Issues

• Dispute over entitlement to costs following substantial amendments to the plaintiffs’ claim.

• Determination of whether the amendments rendered prior litigation steps and related costs moot.

• Consideration of alleged document concealment and its impact on the necessity for amendments.

• Application of modern costs rules, including partial indemnity and “costs thrown away.”

• Assessment of whether either party’s conduct unnecessarily increased costs during the amendment process.

• Reservation of broader costs issues and allegations for determination by the trial judge at trial.

Background and facts of the case

This case arises from contentious proceedings between Dr. Nancy Shekter (plaintiff) and her brother, Gary Lands (defendant), along with various corporate entities they control. Both Dr. Shekter and Mr. Lands are trustees of the Estate of their late father, Melville Lands. Deborah Lands, Gary’s spouse, is also a defendant and acted as the power of attorney for Melville Lands. Mr. Lands is a lawyer, and Ms. Lands is a Chartered Accountant.

The plaintiffs commenced this action on February 20, 2020, with a Fresh As Amended Statement of Claim issued on October 5, 2020. The initial claim primarily sought oppression remedies regarding transactions involving the defendant corporations and Melville Lands’ Estate, as well as professional fees paid to Mr. and Ms. Lands. Dr. Shekter, a non-practicing lawyer, is now self-represented and represents the corporate plaintiffs. The Law Society of Ontario confirmed her status as an L1 non-practicing, retired lawyer over 65, and the defendants did not oppose her acting for the corporate plaintiffs.

Since October 25, 2022, there have been 11 case conferences, with the first held on March 17, 2023. The proceedings have experienced significant delays due to disputes over Dr. Shekter’s status, document productions, non-party records, amendments to pleadings, security for costs, and scheduling of examinations for discovery. As of June 19, 2025, the parties were still attempting to schedule examinations for discovery.

On September 13, 2023, the plaintiffs’ motion for production of documents from non-parties Aird & Berlis LLP (“AB”) and MNP proceeded unopposed. At a subsequent case conference, the plaintiffs indicated their intention to bring a motion to add AB and David Malach as defendants based on documents produced by AB. However, they later deferred this and instead sought to amend the claim to clarify or add causes of action and add Beach-Lands Inc. as a defendant.

The plaintiffs delivered multiple drafts of the Second Amended Claim between July and November 2024. The defendants continued to oppose the amendments. On December 20, 2024, the defendants advised they did not oppose the latest draft but wished to seek costs thrown away. The plaintiffs initially submitted there should be no costs but later also sought costs. The court granted the plaintiffs leave to amend and ordered a timetable for written costs submissions.

Policy terms and legal analysis

Modern costs rules, as set out in the decision, are designed to indemnify successful litigants, facilitate access to justice, discourage frivolous claims and inappropriate behavior, and encourage settlements. The court has discretion over costs under s. 131(1) of the Courts of Justice Act (Ontario) and Rule 57.01(1), with fairness and reasonableness as overriding principles. The general rule is that costs on a partial indemnity scale should follow the event except for very good reasons.

The concept of “costs thrown away” requires that: (i) the step for which costs are claimed was reasonably necessary; (ii) fees or disbursements for the step were wasted or rendered useless; and (iii) the conduct of the other party occasioned the wasted or useless costs. However, even if all elements are met, awarding such costs remains at the court’s discretion.

Outcome and costs determination

The defendants sought all their costs of the litigation up to January 7, 2025, in the amount of $130,715.80 on a partial indemnity scale, claiming that the amendments had restarted the litigation and rendered all previous steps moot. The plaintiffs sought $71,328 on a partial indemnity scale for the costs of their motion for leave to amend, arguing that the amendments were necessitated by the defendants’ concealment of documents and improper conduct.

The court found that the amendments were substantial, expanding the claim from 78 paragraphs and 24 pages to 371 paragraphs and 94 pages, and introducing new claims and a new defendant. However, the court concluded that it could not determine at this stage that the amendments had restarted the litigation or rendered all prior steps wasted, as the original allegations and causes of action were not removed. The effect of the amendments on the proceedings and prior steps would only be known at trial, and the trial judge would be best positioned to determine any claim for costs thrown away.

The court also found that the plaintiffs’ conduct during the amendment process—delivering at least four drafts over approximately 15 months and causing five case conferences—was unnecessarily protracted and caused the defendants to incur additional costs. The court rejected the plaintiffs’ assertion that the defendants were responsible for the extended process or engaged in wrongful conduct.

Having considered the relevant factors and circumstances, the court ordered the plaintiffs to pay the defendants costs fixed in the amount of $14,000 on a partial indemnity scale within 60 days, representing $13,000 for the five case conferences and reviewing multiple drafts, and $1,000 for preparing costs submissions. This order is without prejudice to the parties’ rights to seek further costs at trial regarding the necessity and allegations in the amendments, including issues related to document concealment.

In conclusion, the court directed the plaintiffs to pay the defendants $14,000 in costs within 60 days, with broader costs issues reserved for the trial judge. No other amounts were determined at this stage.