The Application sought the return of a mortgage which the Applicant had transferred to the Respondents. It was also alleged that the Respondents had improperly used the mortgage proceeds in contravention of a Consent Order. The Application was dismissed, and the Court was asked to rule on Costs.

The Respondents cited their entitlement to Costs pursuant to Rule 10.29, and further relied on the factors listed in Rules 10.33(1) and (2). In this regard, the Respondents argued that the issues and circumstances of the Action were not favourable to resolution by summary process, a conclusion that should have been equally apparent to the Applicant, and moreover, the pursuit of Summary Judgment and allegations regarding the misappropriation of mortgage funds caused an unnecessary detour in the Action.

The Applicant argued that the Court should decline to award Costs, award reduced Costs, or defer an Order with respect to Costs. The Applicant expressed that a Costs award payable forthwith could financially impair her ability to proceed with an Application for contempt of Court.

Though the Court disagreed with the Respondents’ suggestion that the issues were not suitable for summary determination, it was not convinced that the Respondents’ presumptive right to Costs had been displaced. The Court ordered that Costs be payable forthwith, as the Applicant could have chosen to pursue contempt of Court instead of Summary Judgment, but did not, and should not then be permitted to defer the consequences of that choice.