Firma Foreign Exchange Corporation v. Netsweeper Inc., CITATION: 2021 ONSC 2268
COURT FILE NO.: CV 1101/18
DATE: 2021-03-25
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Firma Foreign Exchange Corporation, plaintiff
AND: Netsweeper Inc., defendant
BEFORE: Mr Justice Ramsay
COUNSEL: Dylan Cox for plaintiff; Christos Vitsentzatos for defendant
ENDORSEMENT
[1] The plaintiff asks for full indemnity for costs of $41,852.77 in connection with its successful motion for summary judgment: Firma Foreign Exchange Corporation v. Netsweeper Inc., 2021 ONSC 2012.
[2] On October 31, 2016 the defendant appropriated USD 143,483 from the plaintiff’s bank account by reversing a wire transfer on the strength of a false declaration that the transfer had not been authorized. On November 22, 2018 the plaintiff offered to settle for USD 129,134 (about 90% of the amount claimed) plus partial indemnity for costs.
[3] The plaintiff submits that the contract entitles it to full indemnity. On the preponderance of the evidence I find that the entire terms of the contract were made known to the defendant, and that it agreed to be bound by them. The relevant terms read:
The Client Agrees to indemnify FIRMA against any Losses, of any kind, including damages and any regulatory fines as may be imposed, as a result of FIRMA providing or agreeing to provide Services to the Client.
"Losses" means any and all losses, costs, damages, charges, and expenses including, without limitation, legal fees in the amounts actually incurred.
[4] That strikes me as broad enough to include what happened here. I do not take the defendant to disagree. I would have ordered full indemnity anyway on the basis of the defendant’s high handed and dishonest conduct in appropriating the money. Furthermore, if it had been necessary, I would have ordered substantial indemnity for costs incurred after the offer to settle.
[5] The defendant takes issue with the quantum of costs but has not filed its own bill of costs. I find the plaintiff’s bill to be reasonable and certainly within what would have been contemplated.
[6] I order the defendant to make full indemnity for costs in the amount sought.
J.A. Ramsay J.
Date: 2021-03-25