A. Hora

Following a successful trial in a construction lien action where the plaintiff was awarded damages and the defendant's counterclaim was dismissed, the parties made written submissions on costs.

The plaintiff sought costs on a partial and substantial indemnity basis, relying on an unaccepted offer to settle that was beaten at trial.

The court applied Rule 49.10, finding the plaintiff's offer triggered substantial indemnity costs from the date of the offer.

After adjusting for excessive pre-trial hours and an abandoned motion, the court fixed costs payable to the plaintiff at $54,925.36 inclusive of disbursements and HST.

The plaintiff franchisee brought a motion for summary judgment seeking rescission of a franchise agreement under the Arthur Wishart Act due to inadequate disclosure.

The franchisor's disclosure document failed to include recent financial statements, providing only unaudited statements from over two years prior.

The court found this deficiency amounted to a complete lack of disclosure, entitling the plaintiff to rescind the agreement under s. 6(2) of the Act.

The court also found the individual defendants to be 'franchisor's associates' and dismissed the defendants' counterclaim.