Jeffrey Wayne Kramer

Following a successful oppression action involving breach of fiduciary duty, enforceability of a property management agreement, and corporate share ownership, the plaintiff sought substantial indemnity costs relying in part on a Rule 49 settlement offer.

The defendants argued success at trial was divided and that no costs or reduced costs should be awarded.

The court found the plaintiff achieved substantial success, particularly on the oppression and fiduciary breach issues, and had effectively beaten portions of the Rule 49 offer.

The court held that substantial indemnity costs were appropriate for certain issues after the offer date and partial indemnity for others.

Considering proportionality and the absence of a competing bill of costs from the defendant, the court fixed total costs at $145,000 inclusive.

In a wrongful dismissal action brought by a former general counsel, the plaintiff moved to set aside a sealing order previously obtained by the defendant without notice.

The defendant had sought the sealing order on the basis that the draft statement of claim disclosed confidential solicitor-client communications.

The parties later agreed that the sealing order should be set aside after the defendant acknowledged that similar allegations had already been made in other unsealed pleadings forming part of the public record.

The court found that the defendant ought not to have brought the original sealing motion given the existence of those pleadings.

Costs of the motion were awarded to the plaintiff on a partial indemnity basis.

The defendants brought a motion for summary judgment seeking dismissal of an action brought by the estate of a deceased investment advisor concerning alleged entitlement to the advisor’s book of client accounts.

The defendants argued that pursuant to the brokerage firm’s policy, client accounts belonged to the firm upon the advisor’s death and therefore the estate had no property interest or right to disclosure regarding their value.

The estate relied on the advisor’s employment contract stating that he owned his accounts during his lifetime and argued that ownership should pass to the estate absent an agreement to the contrary.

The court held that the evidentiary record was insufficient to determine whether the firm’s general policy applied to the advisor or how it interacted with the individualized employment contract.

Because the moving parties failed to demonstrate that there was no genuine issue requiring a trial, summary judgment was refused.