D. Mills

Following a successful civil action, the plaintiff sought substantial indemnity costs based on an offer to settle under the Rules of Civil Procedure.

The court considered whether the judgment obtained exceeded the settlement offer once prejudgment interest was calculated.

The plaintiff argued that the court should exercise its discretion under the Courts of Justice Act to increase the prejudgment interest rate above the statutory presumption of 0.5%.

The court declined to do so, finding no compelling reason to depart from the statutory rate and noting potential prejudice to the defendant.

Because the judgment plus interest did not exceed the settlement offer, the court awarded costs on a partial indemnity basis.

The defendant brought a motion for leave to amend its Statement of Defence to plead a limitation defence and sought summary judgment dismissing the plaintiff’s claim as statute‑barred.

The dispute concerned commission allegedly owed to the plaintiff arising from a sale to a foreign government ministry, where the defendant had imposed a revised commission formula in 2006.

The court applied the discoverability principle under s. 4 of the Limitations Act and held that the plaintiff knew or ought to have known of the alleged loss by December 2006, or at the latest by correspondence in August and September 2007 confirming the defendant’s position.

Because the action was commenced in September 2009, more than two years after discoverability, the claim was statute‑barred.

Leave to amend the defence was granted and summary judgment was granted dismissing the claim.