Edwin Upenieks

Following a summary judgment decision where the plaintiff was declared the beneficial owner of a disputed property, the parties made written submissions on costs.

The plaintiff sought full or substantial indemnity costs, while the defendant argued for partial indemnity costs apportioned against the plaintiff due to divided success.

The court found the plaintiff was substantially more successful, having achieved his primary goals of retaining the family home and avoiding capital gains tax indemnification.

The court awarded the plaintiff partial indemnity costs of $25,988, discounted slightly for his unsuccessful punitive damages claim.

The applicant sought removal of a notice of interest registered on title under s. 71 of the Land Titles Act.

The respondent, the applicant’s sister, had registered the notice to protect a 15% entitlement to net sale proceeds arising from an agreement creating a trust over those proceeds.

The court held that the agreement created a trust in the net proceeds of sale rather than an interest in land.

Because s. 62(1) of the Land Titles Act prohibits the registration of trusts on title, the notice was unauthorized and had to be removed.

The court confirmed the parties’ agreement that upon sale the net proceeds would be distributed 85% to the applicant and 15% to the respondent.

A law firm brought a motion to set aside an Order of Assessment issued in favour of its former client, arguing the client requisitioned the order outside the 30‑day period under the Solicitors Act.

The client opposed the motion and cross‑moved for production of time dockets and trust and client ledgers, and alternatively sought a finding of special circumstances under s. 11 of the Solicitors Act.

The court found the client had not received the final invoice until April 2014 and therefore requisitioned the assessment within the statutory period.

The court also held that the absence of time allocations, the potential premium in the bill, and the law firm’s reluctance to disclose dockets constituted special circumstances warranting assessment even though the account had been paid.

The motion to set aside was dismissed, production was ordered, and the matter was directed to proceed to assessment.