- Costs thrown away are the costs a party incurred preparing for a step in the litigation that then had to be redone, adjourned, or abandoned — usually because of the other side's conduct,…
- Common situations where a court might order costs thrown away include: - An adjournment requested, or caused, by one party, forcing the other side to redo preparation for a later date -…
- Ontario civil costs generally work on two different timelines: Under the Courts of Justice Act, costs are always within the court's discretion, and the amount and scale awarded — whether…
Ontario civil litigation generally runs on a "loser pays" principle at the end of a case, but sometimes a court steps in mid-lawsuit to order costs immediately, before anyone has won or lost anything. That order is often described as costs thrown away, and it exists to compensate a party for time and money wasted because of something the other side did, or failed to do, along the way.
If you've been told to pay — or you're hoping to receive — costs thrown away, this guide explains what the term means, when courts order it, and how it differs from the costs decided at the end of a case.
What "Costs Thrown Away" Means
Costs thrown away are the costs a party incurred preparing for a step in the litigation that then had to be redone, adjourned, or abandoned — usually because of the other side's conduct, a late change of position, or an amendment to a pleading. Rather than waiting until the whole case concludes to sort out who pays for that wasted effort, the court deals with it immediately, at the point the waste occurred.
When Courts Typically Order It
Common situations where a court might order costs thrown away include:
- An adjournment requested, or caused, by one party, forcing the other side to redo preparation for a later date
- A late amendment to a pleading that makes earlier work, like a defence prepared to answer the original claim, obsolete
- A party failing to properly prepare for, or attend, a scheduled step, wasting the other side's preparation time
- Procedural missteps that force a hearing, motion, or conference to be rescheduled
How It Differs From Costs at the End of a Case
Ontario civil costs generally work on two different timelines:
| Type of costs order | When it's decided | What it compensates |
|---|---|---|
| Costs thrown away | Immediately, at the point the waste occurred | The specific wasted step or preparation |
| Costs of the action | At the end of the case, or a major stage of it | Overall conduct of the litigation, following the general "loser pays" principle |
Under the Courts of Justice Act, costs are always within the court's discretion, and the amount and scale awarded — whether mid-case or at the end — depend on the circumstances. There's no fixed formula or guaranteed percentage of what a party spent.
Who Typically Pays
The party whose conduct caused the wasted step is typically the one ordered to pay costs thrown away, regardless of who ultimately wins the underlying lawsuit. This is part of why the concept exists separately from the final costs award: fault for the specific waste, not overall success in the case, drives the decision. It's also why courts sometimes order costs thrown away against a party who later goes on to win the overall case — success at the end doesn't erase responsibility for a wasted step along the way.
Practical Steps to Avoid Being on the Hook
- [ ] Confirm you're genuinely ready before a scheduled step, rather than requesting a last-minute adjournment
- [ ] Finalize your pleadings and positions early, to avoid amendments that undo the other side's work
- [ ] Communicate promptly with the other side about scheduling conflicts, rather than letting them discover a problem at the last minute
- [ ] Take court deadlines and appointments seriously — missed attendance is a common trigger for these orders
Frequently asked questions
Do I have to pay costs thrown away right away, or can it wait until the end of the case?
Courts have discretion here too, but costs thrown away are often ordered payable immediately, rather than folded into the final costs award. That's part of what distinguishes them.
Can costs thrown away be appealed?
Cost orders can sometimes be challenged, but appellate courts generally give significant deference to a trial court's discretionary costs decisions. Speak with a lawyer about the specific circumstances before assuming an appeal is worthwhile.
Does an adjournment always trigger costs thrown away?
No. Courts consider why the adjournment happened. An adjournment caused by circumstances outside anyone's control is treated very differently from one caused by a party's own delay or lack of preparation.
Is costs thrown away the same as a fine?
No. It isn't a penalty imposed by the court on its own initiative. It's compensation to the other party for their wasted costs, tied to the "loser generally contributes to the winner's costs" framework that runs through Ontario civil litigation generally.
Can a self-represented party be ordered to pay costs thrown away?
Yes. Self-represented litigants are generally held to the same procedural expectations as represented parties, and can be ordered to pay costs thrown away if their conduct caused a step to be wasted.
This is a litigation question
Start a file online — flat, published fees, reviewed by a licensed Ontario lawyer before a dollar is owed.