Executive Summary: Key Legal and Evidentiary Issues

• Whether the plaintiff daughter established unjust enrichment based on her financial and related contributions to the mother’s property
• The validity and impact of a limitations defence where the law was clear but its application to a complex factual matrix was contentious
• The significance of the defendant mother’s Will and intended bequest of the subject property when assessing litigation success and costs
• Consequences of the plaintiff advancing and then effectively abandoning a breach of contract claim on the length and cost of the proceedings
• Usefulness and weight of family members’ testimony, particularly the father’s evidence, where relational grievances risked obscuring the real financial issues
• Reasonableness and proportionality of the plaintiff’s claimed fees and disbursements, and the application of Rule 49 and Rule 57 cost principles in fixing partial indemnity costs

Background and factual context

Marshalok v. Nigro arose out of a bitter dispute between a mother, Joanne Nigro, and her only child, Laura Marshalok, concerning money and effort allegedly expended by the daughter in relation to a residential property owned by the mother. The plaintiff maintained that she had made significant financial contributions, claiming that her mother had been unjustly enriched and that she was owed a substantial sum. The litigation unfolded against the backdrop of a fractured parent-child relationship, and the court openly recognized the sadness of a family conflict that ended up in a three-day trial. From a personal standpoint, the court observed that there were only “losers” in terms of the relationship, as the litigation threatened to sever any remaining ties between mother and daughter.
The property at the centre of the dispute was described as the “subject property,” which the defendant mother owned. Evidence was led about contributions and work performed in relation to this property. The plaintiff’s father, who was the defendant’s former spouse, also testified. The judge found that much of his evidence was driven by his desire to support his daughter and oppose his ex-wife, and concluded that his oral testimony was largely, though not entirely, unhelpful, except to the extent that it clarified specific work he had undertaken on the property.
A notable factual feature was the defendant’s testamentary intention. The mother had made a Will leaving the subject property to her daughter and, at the time of trial, had no spouse and no other children. The judge accepted the mother’s evidence that she intended to benefit her daughter and had no present intention of changing the bequest. Nonetheless, the daughter chose to litigate rather than rely on the expectation of inheriting the property in the future, and the court highlighted the inherent uncertainty of a revocable bequest compared with a concrete monetary entitlement.

The claims and defences advanced

The central legal claim was unjust enrichment. The plaintiff asserted that she had conferred benefits on her mother, primarily through financial contributions related to the property, that her mother had been enriched, that she herself had suffered a corresponding deprivation, and that no juristic reason justified the mother’s retention of the resulting benefit. Although the plaintiff’s initial claim set out a specific dollar figure she said she was owed, the exact amount ultimately awarded on the merits is recorded only in the earlier reasons for judgment rather than in the costs endorsement, and those underlying reasons were not provided in full here.
In addition to unjust enrichment, the plaintiff advanced a breach of contract theory, arguing that there was a binding agreement regarding her contributions and what she would receive in return. Over time, however, this contractual claim proved untenable and was ultimately not pursued to conclusion. The court later found that this abandoned theory had nonetheless forced the defendant to incur extra costs, because she had to respond to a claim that was not ultimately relied on at the end of the trial. That factor weighed against the plaintiff during the costs analysis.
The defendant raised a limitations defence, asserting that some or all of the plaintiff’s claim was out of time. The judge acknowledged that the law on limitations was relatively clear but that the unusual and fact-specific circumstances made its application difficult. As a result, the court rejected any suggestion that the limitations argument itself was unreasonable; it was treated as a legitimate, if ultimately unsuccessful, defence rather than as misconduct.

The role of the Will and intended bequest

A distinctive feature of the case was the defendant’s argument that, in substance, the plaintiff would have fared better had she not pursued litigation, because the mother intended to leave her the subject property in her Will. The defendant invited the court to treat this intended inheritance—said to be more valuable than the plaintiff’s monetary recovery—as a reason to conclude that the plaintiff was not truly the “successful party,” and therefore should receive no costs.
The court rejected this position. It accepted that the mother had, at the relevant time, left the property to her daughter under her Will and had no intention of changing that. However, the judge emphasized that a testamentary bequest is inherently uncertain unless transformed into a binding arrangement: the testator remains free to change or revoke the Will, and the actual future value of the property may fluctuate. There was no binding contractual promise by the mother to bequeath the property, and no mechanism had fixed the equity in the property in a way that could be treated as an equivalent to a present, certain financial entitlement.
By contrast, the only concrete settlement offer the defendant had actually made during the litigation was for a relatively modest sum of money, payable in cash, in exchange for a full and final release of all claims. That offer bore no resemblance to an irrevocable guarantee of the entire property. Given this, the judge concluded that the intended bequest could not be treated as a basis for denying the plaintiff her status as the successful party or depriving her of costs. The uncertain and revocable nature of the Will meant it could not substitute for the plaintiff’s proven entitlement in unjust enrichment.

Settlement offers and the Rule 49 framework

A key issue in the subsequent costs decision was whether the plaintiff’s own offer to settle, made on 31 March 2020, attracted the enhanced costs regime under Rule 49 of the Ontario Rules of Civil Procedure. The plaintiff’s offer contemplated payment of a defined monetary sum, together with costs on either a full indemnity or substantial indemnity basis depending on when the offer was accepted. She argued that, when one compared the trial outcome with the terms of her offer, she had clearly done better at trial and was therefore entitled to elevated costs.
The judge approached the offer “holistically” and accepted that, at first glance, the result at trial appeared more favourable to the plaintiff than the settlement she had offered. The difficulty lay in the interest component. The offer included pre-judgment interest but did not specify the date from which interest would run or the rate to be applied. For an offer to qualify under Rule 49, it must be sufficiently clear that the offeree can understand and calculate its monetary value with reasonable certainty. Here, the absence of defined interest parameters meant that the defendant could not precisely quantify the total value of the plaintiff’s proposal. On that basis, the court held that the March 2020 offer lacked the clarity necessary to trigger the strict cost-shifting consequences under Rule 49.
Even so, Rule 49.13 allows a court to consider any offer to settle when exercising its general discretion on costs. The judge therefore treated the March 2020 offer as one factor among many in the discretionary calculus, acknowledging that the plaintiff had signalled a willingness early on to resolve the dispute for less than what she ultimately obtained, while still insisting on clarity requirements for automatic enhanced costs.

Costs principles and the approach to quantum

In fixing costs, the court relied on section 131(1) of the Courts of Justice Act and Rule 57.01. These provisions give a trial judge broad discretion to determine an amount that is fair and reasonable for the unsuccessful party to pay, taking into account factors such as the result, the importance and complexity of the issues, the conduct of the parties, and proportionality. The court also endorsed the guidance from the Court of Appeal in Boucher v. Public Accountants Council that costs should not be calculated simply by multiplying hours by rates; the overarching objective is reasonableness and the promotion of access to justice.
The plaintiff sought substantial indemnity costs in a significant five-figure amount. The court noted that elevated cost awards, whether substantial indemnity or full indemnity, are reserved for narrow circumstances, namely when a compliant Rule 49 offer so authorizes or when misconduct by the losing party warrants sanction. There was no evidence of misconduct by the defendant of the type contemplated by the authorities, and, as already discussed, the plaintiff’s offer did not strictly attract Rule 49. As such, substantial indemnity was not warranted.
Instead, the judge determined that partial indemnity costs were appropriate. The plaintiff’s partial indemnity claim comprised a substantial figure in fees (inclusive of HST) plus disbursements. The court accepted that the hourly rates charged by both senior and junior counsel were reasonable in light of their experience, but also stressed that experienced counsel are expected to carry out work efficiently. Upon reviewing the Bill of Costs, the judge identified several categories of entries that were not reasonably recoverable from the losing party, even if they might be chargeable as between lawyer and client. These included unexplained calls to other lawyers, administrative tasks such as arranging examinations or corresponding with the court about scheduling, and instances of duplication where both senior and junior counsel appeared to work on the same item without clear justification. The court also disallowed or discounted a number of disbursements that were essentially administrative overhead, such as printing, certain unexplained items, and fax charges.

Responsibility for trial length and complexity

The court viewed both parties as contributing to the length and expense of the proceeding. The emotionally charged nature of the parent-child conflict led to evidence about relationship grievances that, while meaningful to the parties, did not significantly assist in resolving the central legal and financial questions. The plaintiff’s pursuit of a breach of contract theory that was ultimately not advanced to conclusion forced the defendant to incur avoidable costs. Meanwhile, the defendant’s insistence that the plaintiff had only proven a very limited amount of payments, despite her own admissions and concessions in her pleadings, was described as untenable and responsible for wasted time at trial.
These factors were weighed through the lens of proportionality. The issues were undeniably important to the parties, but the case proceeded under simplified rules and involved a relatively modest financial dispute. The court therefore sought a cost award that recognized the plaintiff’s success while preventing the overall cost of litigation from becoming disproportionate to what was at stake.

Final outcome and total amount ordered

On the merits, the court found that the plaintiff, Laura Marshalok, was the successful party and granted her a monetary judgment in unjust enrichment together with pre-judgment interest from 1 February 2018. The specific principal amount of that judgment is described in the separate reasons for judgment, which are not fully reproduced in the materials available here, so the precise figure cannot be confirmed from the provided text alone. In the subsequent costs decision, the court exercised its discretion to award the plaintiff partial indemnity costs fixed at $20,000, inclusive of fees, disbursements, and HST. When the substantive judgment and costs award are considered together, the defendant, Joanne Nigro, is required to pay the plaintiff a monetary judgment of unspecified principal amount plus pre-judgment interest from 1 February 2018, as well as $20,000 in partial indemnity costs, such that the total combined financial recovery in favour of the successful party cannot be precisely quantified from the excerpts provided but is known to include the $20,000 costs figure and an additional damages amount with interest.