Erin H. Durant

The appellants appealed an order of the motion judge.

The Court of Appeal agreed with the reasons of the motion judge and dismissed the appeal, awarding costs to the respondents in the amount of $10,000.

Following a motion to enforce a settlement, the court had previously set aside the settlement despite finding a binding agreement, due to prejudice considerations favouring the applicants.

The present endorsement addressed costs arising from that motion.

The court found that the applicants’ lawyers’ deficient record‑keeping, failure to follow minimum practice standards, and unprofessional conduct caused unnecessary litigation costs and made the factual inquiry significantly more difficult.

Applying Rule 57.07(1) of the Rules of Civil Procedure and the principles in Young v. Young, the court concluded that the lawyers’ conduct caused unnecessary costs and warranted a personal costs order.

Costs were therefore ordered personally against counsel on a partial indemnity basis.

The moving party sought to enforce a settlement under Rule 49.09(a) of the Rules of Civil Procedure after receiving an unconditional notice accepting an offer to settle a vexatious litigant application.

The responding parties argued the acceptance was sent by mistake due to solicitor error and did not reflect their instructions, which required settlement of a related defamation action and cost set‑offs.

The court reviewed the contractual principles governing settlements and the discretionary factors for enforcing settlements where solicitor error is alleged.

While the evidence raised concerns about counsel’s record‑keeping and the possibility that the acceptance was intentionally sent, the court ultimately found the delivery of the unconditional acceptance was plausibly an innocent mistake.

Balancing prejudice between the parties, the court concluded that enforcing the settlement would create greater unfairness to the responding parties and declined to enforce it.