H. Turner

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.

The court determined costs following earlier rulings on competing motions brought by the parties.

After reviewing written submissions, the court concluded that success on the motions was divided and that the litigation history reflected extensive lack of cooperation among the parties.

The court therefore declined to award costs and ordered that each party bear their own costs.

The judge also addressed submissions concerning remarks made by defence counsel impugning opposing counsel’s professionalism, cautioning that such conduct could justify solicitor-client costs in future if warranted.

The respondent brought a motion seeking an adjournment of an application.

During the hearing, counsel for both parties raised objections concerning the admissibility of statements contained in affidavits filed by the parties.

The court noted the requirements under Rule 39.01(5) of the Rules of Civil Procedure governing affidavits on applications, including limits on hearsay, opinion evidence, legal argument, and statements based on information and belief.

The court declined to strike any affidavit paragraphs at this stage and held that the motions judge hearing the application would determine the admissibility or weight of the impugned statements at the hearing.

The application was adjourned and the treatment of affidavit evidence left to the discretion of the motions judge.