Jennifer Klotz

Following the dismissal of both the plaintiff's action and the defendants' counterclaim, the parties made written submissions on costs.

The defendants sought partial indemnity costs of $69,195.59, while the plaintiff argued she was entitled to costs due to the defendants' bad faith and breach of a standstill agreement.

The court noted that although the plaintiff succeeded on the issue of a joint family venture, the action remained a civil proceeding, making the Family Law Rules inapplicable.

Finding divided success but slightly more success for the defendants, and considering the defendants' conduct, the court awarded the defendants costs fixed at $30,000 on a partial indemnity basis.

During the trial, the plaintiff brought a motion for leave to amend her Statement of Claim after the trial judge noted her pleadings contained irreconcilable theories regarding her interest in two corporations.

The plaintiff sought to amend her claim to assert unjust enrichment and constructive trust arising from a joint family venture with the individual defendant, while abandoning claims of legal ownership.

The court granted leave to amend the pleadings to advance the unjust enrichment and constructive trust claims, finding that such claims may not have vested in her trustee in bankruptcy if they crystallized after her discharge.

However, the court denied leave to amend claims asserting legal or beneficial ownership, as those would have vested in the trustee upon her voluntary assignment in bankruptcy.

The plaintiff brought a motion to set aside a registrar's order dismissing the action for delay.

The action, which involved a claim for damages for false allegations of criminal behaviour, was dismissed after the plaintiff failed to meet a timetable deadline to set the action down for trial.

The Master applied the test for setting aside an administrative dismissal, finding that the delay was adequately explained, the deadline was missed due to inadvertence, the motion was brought promptly, and the plaintiff rebutted the presumption of prejudice.

The motion was granted and the dismissal order was set aside.

Following judgment granting the applicant ownership and possession of a property and partial monetary relief against the respondents, the court addressed costs.

Although the applicant was successful on the principal issue and recovered some monetary relief, she had claimed substantially larger damages and succeeded on only a fraction of those claims.

Both parties had taken extreme litigation positions and rejected settlement opportunities.

Considering the discretionary factors under Rule 57.01 of the Rules of Civil Procedure and the familial context of the dispute, the court concluded that neither side achieved sufficient success to justify a costs award.

The court ordered that each party bear their own costs.