James F. Diamond

Following an application and counter‑application relating to an agreement of purchase and sale, the successful party sought costs on a substantial indemnity basis exceeding $45,000.

The court found the successful party had prevailed entirely, including obtaining an order that the deposit be paid and establishing liability for breach of contract.

However, the issues were primarily contractual interpretation and the facts were largely non‑controversial.

Applying Rule 57.01(1) of the Rules of Civil Procedure and the fairness principle from Boucher v. Public Accountants Council, the court declined substantial indemnity costs.

Costs were awarded on a partial indemnity basis against two opposing parties jointly and severally.

Two competing applications concerned governance of a national non‑profit organization and ownership of real property administered by one of its local branches.

The court considered whether a trust agreement purporting to grant beneficial ownership of property to the branch was valid and whether the organization’s executive board lawfully removed the branch president and dissolved the branch.

Interpreting the organization’s constitution, the court held that branches could not own property and that all real property was owned beneficially and legally by the national organization.

The purported trust agreement was therefore invalid.

However, the executive board’s decisions removing the branch president and dissolving the branch were quashed for breach of natural justice because adequate notice and opportunity to respond were not provided.

Following the dismissal of a motion by the defendants to dissolve a Mareva injunction, the court addressed the issue of costs.

The plaintiffs sought costs of $22,170.43 inclusive of disbursements and HST, while the defendants argued the amount should be reduced to $15,000.

The court rejected the defendants’ criticisms of the time spent by plaintiffs’ counsel, noting the absence of comparative information about defence counsel hours and characterizing the challenge as unsupported.

Applying the factors in Rule 57.01 of the Rules of Civil Procedure, the court found that a costs award of $22,000 inclusive of disbursements and HST was appropriate.

The moving defendants were ordered to pay the amount within 30 days, failing which the receiver was authorized to pay the award and charge it to the receiver accounts.

The defendants moved to set aside earlier ex parte orders granting a Mareva injunction and appointing a receiver over corporate assets allegedly used to shield property from enforcement of a substantial fraud judgment.

They argued that changed circumstances following a partial appellate reduction of the judgment, the alleged inadequacy of the plaintiffs’ undertaking as to damages, delay in prosecuting the action, and the balance of convenience justified dissolving the orders.

The court held that although the Court of Appeal reduced and modified aspects of the original fraud judgment, the defendant remained liable for over $12 million and the underlying factual basis for asset preservation had not materially changed.

The court also rejected arguments concerning the undertaking as to damages and delay, noting the extensive appellate proceedings that reasonably delayed progress.

The Mareva injunction and receivership orders therefore remained justified to preserve assets pending trial.

A lawyer sought enforcement of an indemnity agreement executed by former clients in relation to claims arising from the release of disputed trust funds.

After a third-party action was commenced against the lawyer, his professional insurer settled the claim for $100,000 and sought reimbursement under the indemnity agreement.

The respondents argued the settlement was improvident and unreasonable.

The court held that the settlement was reasonable in the circumstances, particularly given the uncertainty of a pending Rule 21 motion and the risks of continued litigation involving a multi‑million‑dollar claim.

The respondents were found jointly and severally liable to reimburse the amounts paid under the indemnity agreement.