S.N. Zeitz

This is a costs endorsement following an appeal where the appellants successfully set aside a finding that a revenue misrepresentation claim was encompassed within the original statement of claim, thereby preserving a Limitations Act defence.

Both parties claimed to be the successful party and sought costs of $20,000.

The court found that success was divided, as the appellants did not get the claim dismissed but did preserve a significant defence.

The court awarded the appellants $10,000 for the appeal and $1,500 for costs submissions, and ordered each party to bear their own costs for the motion below.

The appellants appealed an Associate Judge's decision granting the respondent leave to amend its Statement of Claim to add a revenue misrepresentation claim arising from a share purchase agreement.

The Divisional Court allowed the appeal in part, finding the Associate Judge erred in law by relying on discovery evidence to conclude the amendment was not a new cause of action.

However, the court upheld the Associate Judge's alternative finding that the discoverability of the claim under the Limitations Act involved factual disputes that must be resolved at trial.

The respondent was permitted to amend its claim, but the appellants were granted leave to plead a limitations defence.

The defendant in a solicitor's negligence action brought a motion for security for costs under Rule 56.01(1)(d) of the Rules of Civil Procedure.

The plaintiffs, who were placed into receivership allegedly due to the defendant's failure to attend a receivership application, opposed the motion on the basis of impecuniosity.

The court found that the plaintiffs had demonstrated they could not raise security from their shareholders and that their claim was not plainly devoid of merit.

The motion was dismissed, and costs of $5,500 were awarded to the plaintiffs.

The parties arbitrated their family law dispute, resulting in an award requiring the husband to pay an equalization payment out of his share of the proceeds from the sale of the matrimonial home.

The husband subsequently made an assignment in bankruptcy.

The motion judge incorporated the arbitration award into a court order and granted the wife priority over the husband's unsecured creditors, finding the award created an equitable trust.

The motion judge also ordered the transfer of the husband's bankruptcy-exempt RRSP to the wife.

The Court of Appeal allowed the appeal, holding that the arbitration award did not effect a division of property or impose an equitable trust or assignment that would defeat the bankruptcy scheme.

The Court also set aside the RRSP transfer, as no such relief was claimed in the arbitration and the motion judge erred in using enforcement proceedings to grant a new proprietary remedy.