Robert J. Clayton

The Court of Appeal remitted the issue of whether a condominium corporation (MTCC 1056) was entitled to be indemnified by its property manager (Brookfield) for costs arising from a negligent estoppel certificate.

The property manager had been found negligent in preparing the certificate, making the condominium corporation vicariously liable to the plaintiff.

The court held that an implied right of indemnity exists at common law for a principal found vicariously liable for its agent's negligence.

Brookfield was ordered to indemnify MTCC 1056 for the costs paid to the plaintiff and the costs of the trial and appeal.

Following a complex motion regarding insurance coverage for asbestos claims where the plaintiff was unsuccessful, the successful defendant insurers sought their costs.

The plaintiff argued for a reduction based on divided success on factual issues and refusal to admit facts.

The court rejected the plaintiff's arguments, finding the defendants were the clear winners and their refusal to admit facts was not unreasonable.

The court awarded partial indemnity costs to the defendants, making some reductions to specific bills for duplication of effort among multiple counsel, totaling approximately $546,887.