Executive Summary: Key Legal and Evidentiary Issues

• Propriety of dismissing a long-running civil action for delay where the matter had been set down for trial and remained trial-ready for years.
• Allocation of responsibility for post-2019 delay between the plaintiff and systemic or external factors such as judicial unavailability and illness.
• Assessment of whether the plaintiff’s conduct, in light of the full procedural history, justified the “drastic remedy” of dismissal for delay.
• Evaluation of the reasonableness of counsel’s time, hourly rates, and overall costs in a motion characterized as of average complexity.
• Determination of the appropriate scale of costs (partial indemnity) for a contested motion that the plaintiff successfully resisted.
• Consideration of whether the motion for dismissal itself unnecessarily prolonged the litigation and generated avoidable costs.

Background and procedural context

This case arises out of a civil action brought by 3818187 Canada Inc. against the Corporation of the Township of Russell. The precise underlying cause of action is not described in the available costs endorsement, but it is clear that the dispute has been litigated over a lengthy period of years and has reached the stage where the action was set down for trial as far back as September 2019. From that point onward, the court regarded the action as trial-ready, meaning the parties had completed the necessary pre-trial steps for the matter to be heard on its merits. Despite being ready for trial, the action did not proceed to a hearing within the expected timeframe. The court notes that the delay after the matter was set down was attributable to a combination of judicial unavailability, illness, and other factors that were not the plaintiff’s fault. In other words, once the case was positioned to go to trial, further slippage in the schedule was driven largely by systemic or external circumstances rather than by any failure of the plaintiff to move the matter forward.

The defendant’s motion to dismiss for delay

In this context of prolonged litigation, the defendant, the Township of Russell, brought a motion seeking to dismiss the entire action for delay. Such motions effectively ask the court to terminate a claim before trial because it has not progressed with sufficient speed, often relying on docket history, the passage of time, and prejudice to the defendant. The detailed reasoning on the dismissal motion itself is set out in a separate decision, 3818187 Canada Inc. v. Corporation of the Township of Russell, 2026 ONSC 0006, which is referenced but not reproduced in full in the costs endorsement. What can be drawn from the endorsement is that Justice Hackland concluded the plaintiff should not be penalized for systemic or external delays following the point at which the case was set down for trial. The court accepted that the action had been ready to be tried since September 2019, and that the plaintiff was not the cause of the subsequent scheduling difficulties. Against this procedural backdrop, the motion to dismiss was characterized as unnecessary: the judge expressly observed that the time and effort spent on the motion could instead have been used to try the case, and that, had the motion not been brought, the trial likely would have already occurred.

Assessment of complexity and costs of the motion

After the dismissal motion was resolved in the plaintiff’s favour, the remaining question addressed in this endorsement was which party should bear the costs of that motion and in what amount. The plaintiff, having successfully resisted the motion, sought its costs. Both sides submitted Bills of Costs detailing the hours spent, the hourly rates charged, and the work performed. Justice Hackland considered the litigation to be of average complexity but acknowledged that the motion itself required considerable care and organization by both parties. Senior counsel appeared on the motion, and the court accepted that their hourly rates and time docketed were reasonable in the circumstances. Having reviewed the competing Bills of Costs, the judge determined that the appropriate level of recovery for the successful plaintiff was on a partial indemnity basis. Partial indemnity costs are a common standard in Ontario civil litigation: they are intended to provide meaningful but not complete compensation to the successful party for legal fees and disbursements incurred in the proceeding. No insurance policy wording, contractual indemnity clause, or other specific policy term is discussed in the costs endorsement, and there is no indication that the court’s decision turned on the interpretation of particular policy clauses. The focus is instead on the application of general civil procedure principles governing delay and costs.

Outcome and financial consequences

In the earlier decision dealing with the merits of the dismissal motion, the court refused the Township’s request to terminate the action for delay, allowing the plaintiff’s claim to remain alive and ready for trial. In this subsequent costs endorsement, Justice Hackland concludes that 3818187 Canada Inc., as the party that was “entirely successful” on the motion, is entitled to its costs. The court fixes those costs in a lump sum of $18,500 on a partial indemnity basis, expressly stating that this figure is inclusive of disbursements and HST, and orders that this amount be paid forthwith by the defendant municipality. Therefore, on the materials available, the successful party is the plaintiff, 3818187 Canada Inc., and the total quantified monetary amount ordered in its favour in connection with this motion is $18,500, with no additional damages or other monetary awards specified in the costs endorsement.