Executive Summary: Key Legal and Evidentiary Issues

• Dismissal of the plaintiff’s long-running action for delay after more than a decade of largely unproductive litigation and repeated failures to move the case beyond discoveries
• Chronic non-compliance by the self-represented plaintiff with at least seven court orders and timetables, leading to an extreme pattern of adjournments, re-schedulings, and non-attendances
• Central role of judicial discretion under section 131 of the Courts of Justice Act in fixing costs following the dismissal for delay
• Tension between sympathy for the plaintiff’s serious health issues and the court’s need to maintain focus on the substantive rights and obligations of the parties and the efficient progress of litigation
• Plaintiff’s costs submissions concentrating on alleged errors in the reasons and on her medical conditions rather than engaging with the actual issue of costs and the prejudice to the defendants
• Proportional and compassionate reduction of the defendants’ already modest costs request, resulting in a significantly discounted costs award relative to their actual legal expenses

Background and facts of the dispute

The case of Cherry v. Nubury arises out of a civil action commenced by the plaintiff, Alma Cherry, in September 2013 against multiple defendants: Nubury Properties Limited, Care Pest Management Incorporated, Ecosmart Technologies Ltd., and Biosweep Canada Corporation. Although the costs endorsement does not detail the underlying cause of action, the nature of the defendants—a property company and entities involved in pest management and environmental remediation—indicates that the dispute likely related to conditions at or services performed in certain premises. Over the life of the proceeding, the action never progressed beyond the discovery stage. Instead, it became characterized by repeated scheduling problems, adjournments, and non-attendances by the plaintiff. The court notes that the chronology of steps in the litigation—recording adjournments, re-schedulings, and failures to attend—ran to five and a half single-spaced pages, illustrating the extraordinary procedural history and delay. Throughout the litigation, Ms. Cherry appeared as a self-represented litigant. She repeatedly raised serious health issues that required accommodation. The judges involved, including Justice Morgan in this decision, granted numerous accommodations and adjournments to take those health concerns into account. Despite this, the case did not move forward in any meaningful way, and the defendants continued to bear the burden of unresolved claims over an extended period. Ultimately, in an earlier decision, Cherry v. Nubury, 2025 ONSC 6670, the court dismissed Ms. Cherry’s action for delay. The present 2026 decision addresses only the issue of costs flowing from that dismissal.

Procedural history and dismissal for delay

The procedural background is central to understanding the outcome. From the filing of the claim in 2013 until the dismissal in 2025, the action remained stalled at the discovery stage. The plaintiff failed to comply with at least seven separate court orders or litigation timetables meant to keep the case on track. Across more than a decade, the defendants were required to respond to motions, attend hearings, and prepare for steps that were often adjourned or vacated due to Ms. Cherry’s requests and non-attendances. The court observes that, despite extensive efforts at accommodation—by both the court and the defendants—the litigation did not progress on the merits of the claim. Instead, attention continuously shifted to adjournments, accommodations, and issues relating to the plaintiff’s health and procedural complaints. In the earlier 2025 decision, Justice Morgan dismissed the action for delay, concluding that the pattern of chronic non-compliance and lack of progress warranted bringing the litigation to an end. That ruling established the defendants’ success on the motion; the 2026 endorsement addresses what costs, if any, should follow that success.

The parties’ costs positions and submissions

Following the dismissal, the defendants—Nubury Properties Limited, Care Pest Management Incorporated, Ecosmart Technologies Ltd., and Biosweep Canada Corporation—brought written submissions seeking costs. Their counsel advised the court that each defendant had incurred in excess of $100,000 in legal fees over the lifespan of the action. Given the twelve-plus years of litigation, the court regarded this figure as likely conservative. Despite the magnitude of their expenditures, the defendants did not seek full indemnity nor even partial indemnity at a level close to their actual costs. Instead, they asked for a modest and largely symbolic sum of $5,000 per defendant, for a total of $20,000 on an all-inclusive basis. The court expressly characterized this request as more of a recognition of the effort and expense involved than as a serious attempt to recoup the true cost of defending the claim. In response, Ms. Cherry filed her own written submissions. Rather than addressing the usual costs factors—such as the result, reasonableness of positions, or the impact of delay on the opposing parties—she focused almost entirely on alleged mistakes and omissions in the reasons for the underlying dismissal decision. Over 24 paragraphs, she criticized what she saw as inaccuracies or gaps in the court’s description of her health conditions and the accommodations she had received. She expanded upon her diagnoses and personal circumstances but did not seriously contest either the dismissal for delay or the appropriateness of awarding costs to the successful defendants. When she did touch on the costs issue directly, Ms. Cherry limited herself essentially to one substantive point: she stated that she did not have $20,000 to pay the defendants. The court accepted that she was being truthful about her financial limitations and noted that, while she tended to immerse herself in tangential detail and procedural complaints, there was no indication of dishonesty.

Judicial assessment of delay, conduct, and costs factors

In determining costs, Justice Morgan emphasized the discretionary nature of costs orders under section 131 of the Courts of Justice Act. That provision allows the court to consider all relevant circumstances in deciding whether, and in what amount, to award costs. Here, the court weighed several competing considerations. On one hand, the defendants had clearly prevailed in having the action dismissed for delay, having endured more than a decade of litigation that never advanced to a merits determination. They had incurred substantial legal fees, and the modest amount they requested—$5,000 per defendant—was a fraction of their actual expenses. The court therefore accepted that they were justly entitled to costs. On the other hand, the court took into account the plaintiff’s personal circumstances and financial position. Ms. Cherry’s litigation conduct was problematic; she had repeatedly failed to comply with court orders and had focused her energies on accommodations and perceived procedural slights rather than advancing her substantive claim. Nonetheless, the court acknowledged that her difficulties were largely rooted in health issues and a tendency to become lost in irrelevant detail rather than in bad faith. Justice Morgan accepted her representation that she lacked the means to pay the full $20,000 sought and recognized that even the defendants’ reduced request, while modest relative to their actual spend, might still be beyond her financial capacity. The court also commented that the plaintiff’s use of the costs process to seek elaboration and correction of the earlier reasons—rather than to engage with costs—was emblematic of her broader approach to the litigation: focusing on herself and her circumstances instead of the rights and obligations at stake and the need to move the case forward.

Costs outcome and identification of the successful parties

Balancing these factors, Justice Morgan decided that a further reduction of the defendants’ already discounted costs request was warranted. Exercising the court’s discretion, he reduced the total costs award by $6,000, from the requested $20,000 to $14,000. This translated into an order that the plaintiff, Alma Cherry, pay each of the four defendants—Nubury Properties Limited, Care Pest Management Incorporated, Ecosmart Technologies Ltd., and Biosweep Canada Corporation—$3,500, inclusive of all disbursements and HST. In doing so, the court reaffirmed that the defendants were the successful parties in the litigation: they had obtained dismissal of the action for delay in the 2025 decision and were entitled to costs in the subsequent 2026 endorsement. The final outcome therefore left the defendants with a significant gap between their actual legal expenditures and the amount recovered, but it recognized their success and the prejudice they had endured, while tempering the financial impact on the plaintiff in light of her limited means. In net effect, the result confirms that the defendants are the successful parties, and the total monetary award ordered in their favour is $14,000 in costs, payable by the plaintiff.