Court File and Parties

Court File No.: CV-24-00717666-00 Date: 2025-08-29 Superior Court of Justice – Ontario (Commercial List)

Re: Royal Bank of Canada Plaintiff

And:

Kurt Anthony Sunn, 122 Laird General Partner Inc., Adrian Johansson, Lank Experiences Inc., Yashna Singh, Yashna Singh operating as Best Choice Mortgage and Financial Services, Amal Singh Mortgages Inc., Amal Singh, Pham Ha Linh Mai, Sergio Merchant, Tong Thomas Tung Sing, Cindy Tong, Omar Sinai, 2356660 Ontario Inc., Tanas Peslikoski, Jim Skenderis, Dimitrios Skenderis, Zakariae Mahrady, Fung-Ling Wong, Luxury Automobiles Ltd., John Doe, Jane Doe, Bank of Montreal, The Toronto-Dominion Bank, Canadian Imperial Bank of Commerce and The Bank of Nova Scotia

Defendants

Before: Kimmel J.

Counsel:

• Catherine Francis, for the Plaintiff
• Nicholas Holmberg & Melanie Zetusian, for the moving party, DJL Jewelry
• Norman Groot, for the defendant Kurt Anthony Sunn

Heard: July 25, 2025

Endorsement (DJL Jewelry Motion to Enforce Settlement with RBC)

The Action and the Settlement Enforcement Motion

[1] RBC is suing Kurt Anthony Sunn ("Sunn") for an alleged fraud that was perpetrated through his accounts with the plaintiff Royal Bank of Canada ("RBC") by Adrian Johansson and his affiliates (the "Johansson Parties") and Yashna Singh and her affiliates (the "Singh Parties").

[2] Sunn is a lawyer who was acting for Johansson on various transactions that were brokered by Singh. Sunn allegedly received forged cheques and distributed funds to various third parties upon the directions of Johansson and/or Singh.

[3] Some of those third parties are already named as defendants in this action. Others, like the non-party DJL Jewelry Inc. ("DJL"), have not yet been named as defendants. Some third parties have entered into settlements with RBC to repay the funds they received in exchange for a release and RBC's agreement not to add them as defendants.

[4] DJL seeks by this motion to enforce a settlement agreement that it claims it entered into with RBC on December 10, 2024. DJL claims to have entered into a valid and binding settlement agreement for the payment by DJL of $251,500 to RBC in exchange for a comprehensive release from future claims. This settlement figure represents the full amount allegedly received by DJL that RBC has not yet recovered from other parties to whom DJL distributed funds. DJL says that it negotiated and agreed on all essential terms of the settlement with RBC. Although the formal settlement documents were never finalized, DJL claims that the only outstanding step was for RBC to prepare the settlement documents, as its lawyer had agreed to do.

[5] RBC says that the essential terms of the settlement had not been agreed to, and that RBC's counsel's offer to prepare the paperwork was simply an offer to advance the drafts while settlement discussions continued.

[6] RBC argues that the essential terms DJL claims were agreed upon would not have been, and are not, acceptable to RBC. Specifically, RBC says it would not have agreed:

a. that the $251,500 could be repaid over a period of more than four years with only a covenant to pay and consent to judgment from DJL for amounts unpaid in the event of default and without a consent to judgment against the principals of DJL personally, or a guarantee or other form of security for the future payments ("RBC Security Covenant"); or

b. to release DJL and agree that RBC would not pursue Sunn for any claims relating to the settlement funds while RBC waited to be fully paid by DJL.

[7] It is RBC's position that, if its lawyer inadvertently sent an email that suggested otherwise, RBC did not agree to this and the settlement documents that DJL now seeks to have the court approve through this motion (Minutes of Settlement, Release and Consent to Judgment prepared by DJL's counsel in the context of this motion) have never been agreed to or approved by it. RBC maintains that, even if there was a concluded settlement, the court should decline to enforce it since it was inadvertent and has not been acted or relied upon by any party.

[8] Sunn maintains that he intends to pursue DJL with the result that DJL will be brought in as a third party to the action. Sunn was not party to and never agreed to the terms of settlement. DJL says this defeats the settlement that it agreed to, the point of which was for it to avoid being drawn into the action. Accordingly, to avoid a claim-over by Sunn, DJL seeks to include a prohibition in the release from RBC that would preclude RBC from pursuing claims against any party that might claim over against DJL (a "no claims over" provision) and the following term in its proposed order for the approval of the settlement:

[2] THIS COURT ORDERS that RBC is precluded from claiming the sum of $251,500.00 from the Defendant Kurt Anthony Sunn, or any other party, and that DJL will have no further involvement in this proceeding.

[9] RBC challenges these proposed provisions of the order and the release that would restrict its ability to pursue Sunn for the amount of the DJL settlement pending repayment of the full amount received by DJL. Neither the proposed form of order or release had been drafted or exchanged prior to this motion.

[10] Although Sunn opposes the enforcement of the DJL settlement, it is unclear why his interests would be prejudiced if the court were to enforce the no claims over provision that DJL seeks to include in the release and paragraph 2 the order that DJL seeks. However, Sunn is concerned about the last half of the sentence in paragraph 2 (that DJL will have no further involvement in this proceeding) because DJL is considered to be a potentially important witness in the alleged fraud that Sunn was a victim of. The court made it clear during the hearing that no order would be granted that included this prohibition on any further involvement of DJL in this proceeding given that it was expected that DJL would at least have to be a witness in the ongoing action.

Summary of Outcome

[11] DJL's Achilles heel is its insistence upon the inclusion of the first part of this paragraph 2 in the settlement approval order and the "no claims over" provisions in the release that it seeks to have the court impose as a term of the settlement. There is no evidence that RBC agreed to these settlement terms, whereas DJL asserts that these are essential terms of the settlement.

[12] Viewed objectively, it does not make commercial sense that RBC would agree to forego its ability to pursue its claims against its primary defendant who distributed the allegedly fraudulently procured funds (Sunn) before it has been repaid in full the amount of the claim associated with funds that were distributed to DJL. This term was not expressly mentioned in any of the negotiations about the essential terms of the alleged settlement and there was no meeting of the minds between the parties on this point. I do not consider this to be an ancillary term and DJL itself does not characterize it as such.

[13] Accordingly, and for the more detailed reasons that follow, DJL's settlement enforcement motion is dismissed.

Background: DJL's Involvement in this Action

[14] RBC alleges that the defendants participated in a fraudulent scheme arising out of a real estate transaction and seeks to recover the defrauded funds. In the pursuit of its claims, RBC requested, among other things, an order tracing the proceeds of three wire transfers totalling more than $5 million, which were allegedly wired by Sunn from a trust account held by Sunn at RBC to an account held by one of the Johansson Parties at the Bank of Montreal (the "Fraudulent Transaction").

[15] As a result of its initial tracing, RBC alleges, in relation to DJL, that on March 15, 2024, $601,500 from the proceeds of the Fraudulent Transaction was deposited into an account held by DJL, which operates a jewelry and loan store in North York, Ontario. RBC has since recovered $350,000 of the $601,500 from several non-parties who received that portion of the funds from DJL, leaving an outstanding balance of $251,500 claimed from DJL. DJL, in turn, maintains that some or all of these remaining funds were distributed by it to other non-party recipients.

[16] In July 2024, RBC moved to amend the Statement of Claim to, among other things, add DJL and others as defendants, based on the tracing of funds it had undertaken at that time.

The Settlement Negotiations and Alleged DJL Settlement

[17] On July 24, 2024, shortly after RBC brought its motion to amend the Statement of Claim, DJL proposed to make a payment of $251,500 to RBC - the full amount of RBC's threatened claim against DJL - without any admission of wrongdoing, to avoid being named as a defendant and in exchange for a comprehensive release from all claims in the future. Settlement negotiations ensued between the lawyers for DJL and RBC, and RBC agreed that in the meantime it would not take any further steps in the proceeding without adequate notice to DJL.

[18] RBC has lived up to that agreement and did not include DJL or the other non-party recipients of the remaining funds disbursed by DJL in RBC's recent amendments to the Statement of Claim, pending the outcome of this motion.

[19] On August 16, 2024, counsel for RBC provided draft minutes of settlement to counsel for DJL, under which DJL would pay the sum of $251,500 to RBC. These draft minutes provided that upon receipt by RBC of the sum of $251,500:

a. RBC would remove DJL as a defendant from the draft Fresh as Amended Statement of Claim;

b. RBC would have no further claims against DJL in respect of the funds at issue in the proceeding; and

c. RBC and DJL would execute a mutual release in respect of any claims related to the action.

[20] Counsel for DJL sent revised minutes of settlement to RBC on September 6, 2024. The revised minutes contemplated that the parties would agree on a timetable for payment of the settlement amount and provided for a release in favour of DJL.

[21] After a lapse of some months, in response to a further exchange and follow up from RBC's counsel about the status of DJL's settlement instructions, counsel for DJL wrote on October 29, 2024 indicating that he believed the parties would be able to resolve this along the lines that RBC originally proposed, but that DJL would need a payment schedule.

[22] On November 4, 2024, counsel for DJL proposed a monthly payment of $5,000 to RBC. By email dated November 14, 2024, counsel for RBC responded that RBC would be prepared to consider payment over time, on the following conditions:

a. Consent to judgment both business/personal held in abeyance pending the final payment. Later clarified that this would be a consent to judgment in the event of default - in the amount of the settlement less payment to date.

b. [DJL] must close the CAD savings account at RBC - ending 7541.

c. RBC will place deposit only message on RBC Ultimate Business accounting 7533 and [DJL] can deposit monthly payments in there to facilitate the settlement arrangement.

d. Open arrangement so if [DJL] have more funds they can deposit to the deposit only business account.

e. [DJL] should all look for another [financial institution] for their banking needs - all other business/personal.

RBC's counsel also suggested that "it would help if [counsel for DJL] could also get an up-front payment".

[23] By response dated December 2, 2024, counsel for DJL proposed the following conditions on behalf of DJL:

a. Consent to judgment for DJL only to be held in abeyance pending final payment (we will need to discuss a reasonable grace period for delayed payment before the judgment can be issued).

b. Monthly payment to be made into/out of account 7533.

c. Open arrangement for accelerated payments.

d. That RBC reconsider the condition that it and its principals close all of their RBC accounts, noting that "[t]heir innocent receipt of funds (stolen from RBC) should not disqualify them as RBC customers and require them to undertake the onerous task of moving all of their banking to another financial institution" and noting that "[t]he funds are being paid in order to avoid costly litigation".

[24] On December 6, 2024, Mr. Sunn retained new counsel. RBC filed an Aide Memoire for the December 10, 2024 case conference, reflecting the change in lawyers for Mr. Sunn and the fact that RBC was still completing settlement discussions with some proposed defendants.

[25] Counsel for DJL did not attend the December 10, 2024 case conference and there was no representation to the court about a final settlement having been reached between RBC and DJL. The December 10, 2024 case conference endorsement of Black J. indicated that: since "RBC … is in the process of finalizing a Fresh as Amended Statement of Claim, and needs additional time for certain discussions that may impact on the content of the pleading, … it would be appropriate to set a further date for another case conference, so that the discussions between and among counsel can continue".

[26] On December 10, 2024, counsel for RBC sent the following short email reply to the December 2, 2024 email, which is now alleged to constitute RBC's agreement to all essential settlement terms: "Sorry for the delay in responding. We move offices last week and I've been snowed under. We can prepare the paperwork".

[27] The next written communication about the alleged settlement between RBC and DJL was not until February 26, 2025. After a February 18, 2025 request for the settlement documents and February 25, 2025 phone call among counsel, counsel for DJL wrote to RBC's counsel as follows as a "reply" to the December 10, 2025 email: "See below. Let me know RBC's position. It is clear to me that a settlement was reached including all essential terms".

[28] The February 2025 communications were prompted by a request that DJL received from Sunn's lawyers seeking to compel DJL to be examined as one of the third party recipients of funds that were distributed from Sunn's account (among other recipients). On March 6, 2025 counsel for RBC indicated that there appeared to be a huge disconnect between the parties.

[29] The court noted in the scheduling endorsement for Sunn's motion for third party examinations that:

The relief sought by Sunn against the non-party DJL Jewelry is being adjourned, sine die, on consent so that DJL can bring a motion, if so advised, to enforce the settlement that it alleges was reached between DJL and RBC that it also says precludes RBC from pursuing Sunn (and therefore Sunn from pursuing DJL).

[30] Upon DJL's request, this motion was scheduled.

The Issue and Analytical Framework

[31] As DJL describes it, the sole issue on this motion is whether there is a binding and enforceable settlement agreement between RBC and DJL. If so, DJL acknowledges that the court must consider the further question of whether it should exercise its discretion not to enforce any settlement agreement that may be found to have been made.

[32] There is a two-part test that must be considered in determining whether a binding and enforceable settlement exists. A binding settlement is reached when the parties, viewed objectively:

a. had a mutual intention to create a legally binding contract; and

b. reached agreement on all essential terms of the settlement.

See Stronach v. Stronach, 2023 ONSC 3817, 44 B.L.R. (6th) 200, at paras. 6, 31; Olivieri v. Sherman, 2007 ONCA 491, 86 O.R. (3d) 778, at paras. 41, 44; Bawitko Investments Ltd. v. Kernels Popcorn Ltd., 79 D.L.R. (4th) 97, 53 O.A.C. 314, at pp. 103-4.

[33] It is not necessary for formal settlement documents to be executed before a settlement can be found to exist, as long as there is evidence of a mutual intention to reach a final agreement and the essential terms of that agreement are identifiable: see Sahota v. Sahota, 2016 ONSC 314, 344 O.A.C. 309, at para. 16; Bawitko Investments Ltd., at pp. 103-4.

[34] If a settlement is found to exist, the court must then determine whether the settlement should be enforced: see 31 Kingsbury Inc. v. Delta Elevator Company Limited, 2019 ONSC 3619, 99 C.L.R. (4th) 360, at paras. 35-36.

Analysis

[35] The analysis of the issues raised on this motion requires consideration of the two-part test for determining whether a binding and enforceable settlement exists and whether, even if a settlement was reached, it should be enforced. These three questions will be addressed in turn.

Was There a Common Intention to Create a Legally Binding Contract?

[36] The first part of the test for deciding whether a binding and enforceable settlement exists requires the court to determine whether the parties had a common intention to create a legally binding contract.

[37] RBC's unchallenged evidence on this motion is that it did not have a subjective intention to create a legally binding contract on the terms that DJL now seeks to enforce. Despite RBC's evidence being uncontroverted, the analysis requires an objective rather than subjective assessment.

[38] In determining whether a binding settlement has been reached, the courts assess the language used by the parties, as well as their conduct, on an objective standard. The parties' subjective intentions and actual states of mind are not relevant. Instead, the question is whether "in the eyes of a hypothetical honest, sensible businessperson, the parties appeared to have reached an agreement": see Stronach, at para. 9.

[39] It is clear that the parties were working towards an agreement. It is also undisputed that lawyers can act with apparent and ostensible authority to bind their clients to agreements, especially agreements to settle litigation which are often entered into by lawyers on behalf of their clients: see Alston v. Alston, 2016 ONSC 5062, at para. 12, citing Scherer v. Paletta, [1966] 2 O.R. 524 (C.A.), 57 D.L.R. (2d) 532, and Dick v. McKinnon, 2014 ONCA 784, 70 C.P.C. (7th) 45, at para. 4.

[40] The issue is whether the email that RBC's counsel sent on December 10, 2024 in which she offered to prepare the paperwork reflects a common intention to create a legally binding contract based on DJL's last proposal sent on December 2, 2024.

[41] Having regard to the evidence as a whole, DJL's highest and best case is that RBC's lawyer, even if not actually authorized to accept the settlement on RBC's behalf, inadvertently did so by offering to prepare the paperwork on December 10, 2024 in response to a counter-proposal from DJL's counsel on December 2, 2024 that addressed some, but not all, of RBC's stated conditions for settlement.

[42] DJL submits that the parties' conduct (the exchange of emails between their counsel) is consistent with a firmly held intention to settle RBC's proposed claim against DJL. DJL argues that a reasonable person in DJL's position, having received the December 10, 2024 email from RBC's counsel after months of negotiations, would have understood that RBC had accepted the last proposed terms of the settlement and intended to bind itself to the formal settlement documents it agreed to prepare.

[43] That is one possible interpretation of the December 10, 2024 email from RBC's counsel. However, having regard to the complete exchange of emails and communications between counsel about the settlement, I find that the response from RBC's counsel on December 10, 2024, read objectively, to be ambiguous. It is not clear whether the paperwork to be prepared was to be an updated draft that would incorporate what RBC would, and would not, agree to from DJL's latest proposal, or whether it was to be the paperwork to document RBC's agreement to DJL's proposed terms of December 2, 2024.

[44] If it had to be determined objectively on a balance of probabilities, it would be a very close call to determine which of these interpretations of the email exchange between counsel would prevail. However, the very fact that it is a close call means that this email exchange does not evidence the necessary clear mutual intention to create a final binding contract between RBC and DJL. No further communications/negotiations/payments/acts occurred between the parties for several months after this exchange. This fact also weakens the evidentiary foundation for a finding that the email exchange rises to the level of evidence of a common intention to create a binding contract.

[45] In any event, even if this exchange did support a finding of the existence of a common intention to create a legally binding contract, for reasons set out in the next section of this endorsement, I have determined that the parties did not reach an agreement on all essential terms of the settlement that DJL now seeks to enforce.

Did the Parties Reach Agreement on All Essential Terms of the Settlement?

[46] The second part of the test for deciding whether a binding and enforceable settlement exists requires the court to determine whether the parties had agreed on all essential terms of their settlement.

[47] RBC says various elements of the agreement are unresolved. The most significant element is whether it can be adduced from the email exchange between counsel that RBC abandoned its Security Covenant term that was the quid pro quo for its agreement to DJL's proposed long term payment plan. This is an essential settlement term that RBC's witness says RBC did not and would not have agreed to give up if its instructions regarding the DJL proposed terms of settlement on December 2, 2024 had been sought.

[48] DJL relies on the fact that the undertaking on December 10, 2024 by RBC's counsel to "prepare the paperwork" was not made "subject to" instructions from RBC on any specified documents or terms. It contends that if that were the case it would have expected that to have been clearly stated: see Olivieri, at para. 46.

[49] However, even beyond the parties' disagreement about whether RBC objectively abandoned its Security Covenant term, there remains a fundamental disconnect between the proposed order and release that DJL insists are essential terms of this settlement and the settlement terms reflected in the email exchange between counsel for the parties said to constitute their agreement. That is, the requirement in paragraph 2 of the proposed draft order that RBC give up its claim against Sunn for amounts that Sunn disbursed to DJL, that have not been repaid to RBC, prior to the full repayment of those funds: "that RBC is precluded from claiming the sum of $251,500.00 from the Defendant Kurt Anthony Sunn, or any other party, and that DJL will have no further involvement in this proceeding". This is also reflected in paragraph 4 of the proposed form of release that the court is being asked to approve as Appendix "A" to the Minutes of Settlement.

[50] Nowhere in the email exchanges about the terms of settlement, or in the first mark-up of the Minutes of Settlement sent back by DJL's lawyers in September 2024, was there a reference to a restriction or prohibition on RBC pursuing Sunn for any funds distributed to DJL. This term was introduced for the first time in paragraph 2 of the draft settlement approval order that DJL is asking the court to sign on this motion and paragraph 4 of the release appended to that order.

[51] The Minutes of Settlement entered into by RBC with other parties who received proceeds of the fraud, including the recipients of the other $350,000.00 funneled through DJL, all involved immediate repayment of the funds in full and a "bare bones" release covering only the persons or entities that repaid the funds.

[52] DJL was made aware of these release terms with other third parties, yet it seeks to imply a broader release and claims bar against, and effective release of, Sunn. RBC maintains that, as with the other recoveries, any recoveries from DJL would reduce the overdraft in Sunn's trust account, but only when and to the extent of actual receipt of the funds, with interest accumulating on the balance and the risk of default being borne by Sunn.

[53] DJL suggests that the court can imply this claims bar and release with no claims over as reasonable non-essential terms of the settlement, flowing from the agreement to release DJL from all future claims, relying in part upon the case of ADT Security Services Canada, Inc. v. Fluent Home Ltd., 2023 ONSC 5052. In that case, the court found that the precise terms of the release were not essential terms of the settlement, and that where the parties had not agreed on the release terms the court would "imply a simple release, consistent with ordinary practice and commercial reasonableness, given the overall context of the claim".

[54] DJL argues that once RBC had settled with DJL for payment of the remaining sum of $251,500.00 not yet recovered and agreed to release DJL from all future claims, RBC cannot maintain its claim for the same specific funds against Sunn or any other party because those funds have been accounted for and are secured pursuant to the terms of the settlement agreement with RBC. However, ADT Security does not support the implication of the terms that DJL seeks and no authority was cited by DJL for this proposition.

[55] The court can only imply non-essential terms of a settlement. DJL suggests that what was left to be negotiated was simply a matter of "reaching agreement on incidental matters, such as the method of payment or the exchange of releases": see Sumarah v. International Property Group (Toronto) Limited, 2024 ONSC 334, at para. 58. However, by its own submission, DJL says paragraph 2 of the proposed order approving the alleged settlement, which contains the provision precluding RBC from continuing claims against Sunn for which he might claim over against DJL, is an essential term of this settlement.

[56] Releases do sometimes contain no claims over provisions that preclude a releasor from suing someone who might claim over against the releasee, but that is a separate term and is not, as DJL appears to suggest, an automatic extension of an agreement to provide a release. At the very least, for the court to imply a no claims over provision in a release that had not yet been drafted and agreed to by the parties at the time they are alleged to have reached a settlement agreement, such an implied term should at least be based upon an ascertainable common intention of the parties derived from the terms of the settlement that they had agreed to. I find no such objective ascertainable intention in this case. It would not be reasonable to imply such a term in a situation like this where there is an existing claim by RBC against Sunn that would be barred or released.

[57] I find the provisions of paragraph 2 of the order and paragraph 4 of the appended form of release to include essential terms of the alleged settlement that were not agreed upon. In the absence of agreement upon all essential terms, there is no enforceable settlement between RBC and DJL.

Should the Court Exercise its Discretion Not to Enforce the Settlement?

[58] Since I have found no settlement was reached, this residual discretion is not engaged.

[59] The discretion not to enforce a settlement agreement should be exercised sparingly: see Wilson v. John Howard Society of Windsor-Essex County, 2020 ONSC 5531, at para. 55; Srebot v. Srebot Farms Ltd., 2013 ONCA 84, at para. 6. That said, in this case I would have exercised my discretion not to enforce the settlement if one had been reached. There is no indication of reliance or prejudice on the part of DJL. RBC had clearly not agreed to the terms that DJL seeks to now enforce, even if RBC's counsel inadvertently indicated otherwise.

[60] There is no evidence that DJL relied on the December 10, 2024 email, or that DJL did anything further to such alleged reliance. No funds have been paid by DJL in furtherance of the settlement. There is no affidavit from DJL stating that it understood or believed that it had entered into a settlement with RBC. There was no contemporaneous email from Mr. Holmberg taking the position that the parties had concluded a settlement. To the contrary, nothing happened for almost three months after the settlement was allegedly reached. DJL's involvement in the litigation has been on hold since the issue came to a head, pending the outcome of this motion.

[61] In contrast, it is undisputed that RBC was not even aware of the offer, that the offer did not include the terms that RBC had previously advised it was prepared to consider, including the RBC Security Covenant, and that RBC did not instruct counsel to accept the offer.

[62] In these circumstances, DJL should not be permitted to take advantage of a quick email response from RBC's counsel in the course of the back and forth negotiations that had evolved through the exchange of proposed draft minutes of settlement. Justice would not be served by enforcing a settlement under these circumstances.

[63] Furthermore, the terms of settlement that DJL seeks to enforce would prevent Sunn from investigating the full extent of the fraud that he claims to also be a victim of. There is no suggestion by DJL that Sunn was consulted about or ever agreed to give up his right to examine or seek to obtain information from DJL, and the court made it clear from the outset of the hearing of the motion that it would not include the second part of paragraph 2 of DJL's proposed draft order which would have had that effect.

[64] This is not a question of second thoughts on RBC's part. It is a function of the fundamental disconnect that RBC's counsel referred to when it was first suggested by DJL that a settlement had been reached.

Costs

[65] According to the costs outlines and submissions made at the hearing:

a. DJL is seeking all-inclusive partial indemnity costs of this motion of $14,926.17.

b. RBC is seeking all-inclusive partial indemnity costs of this motion of $11,958.23.

c. Sunn indicated in his factum that he was not seeking any costs of this motion, but requested $3,400 in partial indemnity costs at the hearing.

[66] RBC is the successful party on this motion, and has a prima facie entitlement to be paid its partial indemnity costs by DJL. Rule 57.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, directs the court to fix costs of motions where possible. Having regard to the applicable factors under Rule 57.01 and in the exercise of my discretion under s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, I find the $11,958.23 all-inclusive amount of partial indemnity costs claimed by RBC to be fair, reasonable and proportionate in the circumstances and order DJL to forthwith pay that amount of costs to RBC in respect of this motion.

[67] Sunn is not awarded any costs of this motion. His interests were advocated by RBC, his factum was delivered late and was not before the court because it was not uploaded into Case Center, he did not provide a costs outline and DJL points out that in his factum he said he was not asking for any costs. He should be held to that representation.

Next Steps

[68] RBC has indicated that it remains prepared to settle with DJL for the recovery of funds but only on terms that are acceptable to all parties. That would include Sunn. The parties are encouraged to try to reach a settlement before RBC brings back on its motion to further amend its Statement of Claim to assert claims against DJL, its principals and the recipients of the remaining unrecovered funds that were distributed to DJL.

Kimmel J.

Date: August 29, 2025

Footnotes

[1] Sunn attempted to file a factum on this motion. The court did not receive it because it was not uploaded to Case Center in advance of the hearing of the motion. Sunn's counsel did appear and make submissions at the hearing of the motion. Since Sunn supported RBC's position, which has prevailed, this endorsement does not address any of the other arguments raised in Sunn's factum that were not addressed through the written submissions of the others or the oral submissions at the hearing. In particular, some of the submissions made on behalf of Sunn included various assertions of wrongful conduct against DJL that have not been considered by the court in arriving at the decision on this motion.

[2] As noted earlier in this endorsement the focus of the submissions was on the first part of this proposed paragraph in the draft order, since the court had indicated at the outset that it was not prepared to place a bar on any further involvement of DJL in this proceeding when it might need to provide relevant documents and testimony. However, that too is a term that there is no evidence was ever agreed to as between RBC and DJL, and it was certainly not agreed to by Sunn.