Mr. M. Smiley

The court rendered an endorsement on costs following a successful motion by the Estate to set aside an ex parte order for a certificate of pending litigation obtained by the plaintiff.

The plaintiff had obtained the certificate without notice to the Estate, despite the Estate being represented, and without full disclosure of relevant facts, such as the property having already been sold.

The Estate sought partial indemnity costs after the plaintiff consented to setting aside the order.

The court found that while Rule 42.01(3) permits ex parte motions for certificates of pending litigation, professional courtesy and the adversarial system require notice when counsel is on the record, and full disclosure to the court.

The court fixed costs at $2,500.00 in favour of the Estate, payable by the plaintiff.

The defendants brought a motion for a declaration that a binding settlement was reached between the parties by Minutes of Settlement dated April 2, 2019.

The plaintiff opposed the motion, arguing the settlement was an unenforceable agreement to agree and that the defendants repudiated the agreement through delay.

The court found that essential terms, such as whether the plaintiff would incur guarantee obligations on becoming a 15% shareholder, were not agreed upon at mediation.

The court concluded the Minutes of Settlement constituted an unenforceable agreement to agree and dismissed the motion.