B. Yellin

The plaintiff moved for relief from the deemed undertaking rule to permit use of discovery evidence outside the civil proceedings, both to make a securities-regulatory complaint against one defendant and to report alleged perjury by another defendant to police and Crown counsel.

Applying the exceptional-circumstances and superior-public-interest framework from Juman v. Doucette, the court held that relief from the undertaking requires a sufficient evidentiary record, including the relevant documents or transcripts, to support at least a prima facie case.

The evidence relating to alleged securities violations was speculative and unsupported by the actual records said to substantiate the misconduct.

The evidence relating to alleged perjury consisted of improper affidavit assertions without the underlying transcripts or documentary contradictions.

The motion was dismissed in its entirety.

The appellant appealed a judgment regarding an assignment obligation, an indemnity obligation, and a costs order.

The Court of Appeal found no error in the motion judge's finding of waiver of the assignment obligation or the legal effect given to the indemnity obligation.

The court granted leave to appeal costs and reduced the costs awarded below by $2,000 to remove services unrelated to the litigation, but otherwise dismissed the appeal.

Following a motion concerning whether an accepted settlement offer constituted an enforceable settlement in estate litigation, the court had previously determined that a binding settlement existed.

The estate trustee successfully resisted the beneficiary’s motion.

On the subsequent costs endorsement, the court considered the factors under s. 131 of the Courts of Justice Act and rule 57.01(1) of the Rules of Civil Procedure.

While the trustee sought substantial indemnity costs, the court held that the circumstances did not justify such an award, particularly in the absence of a Rule 49 offer.

Partial indemnity costs were awarded to the estate trustee, subject to reductions reflecting excessive time entries and the trustee’s late disclosure of certain estate assets.

In an estate dispute between brothers arising from a contested passing of accounts, the estate trustee moved under Rule 49.09 of the Rules of Civil Procedure to enforce a settlement based on the beneficiary’s offer to settle.

The court considered whether the offer remained open for acceptance and whether enforcement would create an injustice.

It held that the hearing of the application had not commenced on earlier procedural attendances and that the offer, which had not been withdrawn in writing, remained open when accepted.

Applying contract principles and appellate guidance on enforcing settlements, the court found the offer clear and unequivocal and rejected arguments that a mistaken assumption about its expiry or incomplete disclosure justified non‑enforcement.

The court concluded there was a binding settlement and granted judgment enforcing the accepted offer.