Gary Graham

The appellant appealed a Master's order that dismissed its action for delay under Rule 11.03 of the Rules of Civil Procedure.

The Master had found that the appellant intentionally delayed obtaining an order to continue following a corporate reorganization to insulate its assets from the respondent's counterclaim.

The Divisional Court allowed the appeal in part, finding that the Master misapprehended the evidence and erred in applying the test for dismissal.

The Court held that a dismissal under Rule 11.03 requires a showing of prejudice related to the failure to obtain the order to continue, which the respondent failed to demonstrate.

The dismissal of the action was set aside, though the Master's refusal to vary the flawed 2015 order to continue was upheld, with leave for the appellant to requisition a fresh order.

The applicant sought to enforce an indemnity agreement relating to environmental contamination, requesting that it be defended at the respondents' expense by counsel taking instructions from the applicant rather than the respondents.

The applicant argued that a conflict of interest existed because the sole officer and director of the indemnifying corporations was also the directing mind of the plaintiff corporation in the underlying action.

The court dismissed the application, finding no direct conflict of interest that would deprive the indemnifying parties of their right to direct the defence, as the director was not acting as counsel and the parties' interests were not directly adverse regarding the indemnity.

The appellant appealed an order enforcing an international arbitration award, arguing it was denied procedural fairness when the application proceeded in its absence.

The appellant had previously terminated its solicitors' retainer and indicated an intent to follow different channels.

The Court of Appeal dismissed the appeal and the motion to adduce fresh evidence, finding no adequate record to support the procedural fairness claim.

The court noted that the appropriate procedure to raise the issue is a motion to set aside the order under Rule 38.11 in the Superior Court.

The court issued an endorsement to settle the terms of its orders following an appeal.

The court determined that interest on costs should run from September 29, 2004, the date the costs order was made, rather than the date of the main judgment.

The court declined to alter the trial judge's order regarding carriage of the reference, noting it was not argued and should not be modified absent agreement or if affected by the appeal reasons.

The court also declined to cross-reference the orders in the two separate actions, noting the agreement that there can be no double recovery.