Kevin Johnson

The plaintiff brought a motion to set aside a Registrar's order dismissing its $104 million action for delay.

The action involved claims of breach of contract and fiduciary duty against a former director.

The court found that the litigation delay was adequately explained by the ongoing discoveries and undertakings, and that the failure to set the action down for trial was due to counsel's inadvertence.

Finding no actual prejudice to the defendants, the court exercised its discretion to set aside the dismissal order.

Following a trial in which the plaintiff obtained complete success in enforcing an agreement relating to the conveyance of land, the court determined the appropriate costs award.

The plaintiff sought substantial indemnity costs relying on a Rule 49 offer to settle and the defendant’s alleged reprehensible conduct before and during litigation.

The court held that the plaintiff achieved a result more favourable than its Rule 49 offer and that the defendant’s conduct, including unreasonable litigation positions and procedural steps that prolonged the proceedings, justified elevated costs consequences.

Applying Rule 49.10 and the factors under Rule 57.01, the court awarded substantial indemnity costs in a lump sum inclusive of disbursements and taxes.