Litigants sometimes believe they must allege maximal goals if they are going to achieve their actual objective. If you needed a fresh caution against overreaching, the costs ruling in Guttin v. Creber, 2026 ONSC 4507, delivers it. After an oppression dispute involving B Con Engineering Inc. and BCE Realty Ltd., the Ontario Superior Court fixed costs against the notionally successful applicants. This was because, despite the applicants’ limited success on disclosure and sale process issues, their big ticket allegations and remedies did not land.
The dispute produced mixed results on the merits. The court found that respondent unfairly disregarded applicant’s rights regarding timely disclosure of corporate financial information. But the court declined to appoint a receiver manager and instead issued targeted directions for the sale of the property at issue, including disclosure obligations, a right to use buy sell provisions, and a distribution waterfall for sale proceeds. The parties then could not agree on costs and filed written submissions.
On costs, the applicants argued that success was essentially divided. They pointed to the finding of oppression tied to delayed and denied access to records, and to success in moving the property sale forward while proceeds were held pending accounting. They submitted that, although some relief was denied, they prevailed on the most important disclosure and sale process issues.
The respondent, on the other hand, emphasized that he defeated numerous serious allegations of fiduciary breach, dishonesty and concealment. The applicants established only one oppression complaint related to timely financial disclosure. The respondent noted that the court endorsed proceeding with the property sale, with encumbrances paid before distribution, and argued the applicants unnecessarily prolonged the litigation. As a result, he sought partial indemnity costs. The corporate respondents similarly submitted that they were overwhelmingly successful on the disputes that drove the litigation and sought partial indemnity costs, with a reduction for two issues on which they were not successful.
Applying s. 131 of the Courts of Justice Act and r. 57.01, and guided by Boucher’s direction for a fair and reasonable approach rather than a formulaic one, the court weighed overall success, complexity and proportionality. It highlighted that only one act of oppression was found, that the respondents were more successful on the majority of issues, and that the requested appointment of a receiver manager was denied. Successful parties are presumptively entitled to partial indemnity costs, and the respondents’ requests fell within a reasonable range given two related applications and voluminous materials. The court fixed costs of $50,000 to the individual respondent and $50,000 to the corporate respondents.
The lesson is straightforward: calibrate the case to what is realistically provable and proportionate to the relief attainable. Where the record supports targeted remedies, such as discrete disclosure orders or refinements to a sale process, courts may grant that relief. But expansive theories and ambitious remedies must be justified. When the centre of gravity of a case lies in high stakes allegations that fail, modest wins will not insulate a party from adverse costs. Guttin’s costs ruling shows how overreach can turn partial successes into an overall loss.
Michael Crampton