Lee Akazaki

Following the successful dismissal of the plaintiff's action on a motion to strike, the defendants sought costs on a substantial indemnity basis and requested that the costs be paid personally by the plaintiff's lawyers.

The defendants argued that the plaintiff lacked the mental capacity to instruct her counsel to commence the action.

The court rejected the request for substantial indemnity and personal costs, noting that if the defendants genuinely believed the plaintiff was under a disability, they should have sought the appointment of a litigation guardian or challenged the lawyers' authority under the Rules of Civil Procedure.

Costs were awarded to the defendants on a partial indemnity basis.

The plaintiff, Celia Yang, claimed $150 million in damages against her insurer and various service providers, alleging misconduct in the administration of her statutory accident benefits (SABs) claims.

The defendants brought a motion to strike the statement of claim, arguing it contravened pleading rules, the court lacked subject matter jurisdiction (as SABs disputes fall under the exclusive jurisdiction of the Licence Appeal Tribunal), and the claims failed to disclose a reasonable cause of action (including breach of Charter, PIPEDA, tort of bribery, spoliation, breach of contract, inducing breach of contract, fiduciary duty, and conspiracy).

The court dismissed the action, finding the statement of claim scandalous, the court lacked jurisdiction over SABs-related complaints, and the pleaded causes of action were untenable.

The plaintiff subcontractor supplied lumber for the construction of the defendant's home but was not paid.

The plaintiff dealt with an individual named 'Peter' representing the contractor, which was a shell company.

The court found that the defendant homeowner was 'Peter' and the controlling mind of the contractor.

The court held that funds drawn from the defendant's personal account and represented in a bank draft constituted monies received by the contractor, creating a trust under section 8 of the Construction Act.

The defendant was found personally liable for breach of trust under section 13 of the Act and ordered to pay the outstanding invoices.

Following the dismissal of the plaintiff's action after a two-week trial, the defendants sought costs on a substantial indemnity basis from the date of their offer to settle.

The plaintiff argued for a significantly lower amount and opposed substantial indemnity.

The court determined that Rule 49.10(2) of the Rules of Civil Procedure, which provides for substantial indemnity costs, applies when a plaintiff obtains a judgment less favourable than an offer, not when their action is dismissed.

Furthermore, the court reiterated that substantial indemnity costs, outside of Rule 49.10, are reserved for cases involving egregious misconduct, which was not present here.

Consequently, the court awarded the defendants costs on a partial indemnity basis in the amount of $150,000, inclusive of disbursements and HST, after making adjustments for an expert fee.