Kyle Peterson

Following a successful civil action in which a transfer agreement was set aside and the plaintiff was declared to hold a one‑third interest in certain assets, the court determined the appropriate scale and quantum of costs.

The plaintiff sought costs on a substantial indemnity basis, arguing the defendants’ conduct involved breach of fiduciary duty, undue influence, misrepresentation, and unconscionability.

The court held that substantial indemnity costs were warranted because the defendants’ conduct was reprehensible, including exploiting a vulnerable family member and deliberately failing to produce relevant financial records during litigation.

After considering objections regarding duplication of counsel, abandoned claims, and the reasonableness of hours billed, the court fixed costs globally.

The court awarded $525,000 inclusive of taxes and disbursements.

Following a judgment in favour of the plaintiff, the court addressed the appropriate process for determining costs.

The plaintiff sought substantial indemnity costs of approximately $587,000, while the defendants argued that the matter should be referred to an assessment officer because the plaintiff had not produced detailed dockets or invoices supporting the claimed fees and disbursements.

The court held that under Rule 57.01 of the Rules of Civil Procedure, the trial judge should ordinarily fix costs and that referral to an assessment officer is reserved for exceptional cases.

The absence of detailed dockets did not make the case exceptional, particularly where a proper costs outline had been provided in accordance with the rules.

The court declined to order an assessment and directed a further written exchange of submissions after disclosure of dockets if requested.

The plaintiff's husband died in a construction accident, leaving her as the sole heir to his one-third interest in a successful family construction and real estate business.

While emotionally distraught and relying heavily on her sister-in-law to manage the estate and business affairs, the plaintiff signed a Transfer Agreement giving up her husband's shares and real estate interests in exchange for a condominium of significantly lesser value.

The plaintiff brought an action to set aside the Transfer Agreement.

The Superior Court of Justice found that the sister-in-law and brother-in-law had abused their relationship of trust, and set aside the agreement on the grounds of undue influence, unconscionability, misrepresentation, and breach of fiduciary duty.

The court also declared that the plaintiff was entitled to a one-third interest in various joint venture properties that had been improperly diverted to a company solely owned by the sister-in-law.