S. Draper

The court issued an endorsement on costs and the settling of orders following a decision that declared a settlement agreement valid and stayed a fourth-party claim.

The court awarded partial indemnity costs against the third party, 1671233 Ontario Limited, in favour of the plaintiffs, defendants, and other third/fourth parties.

The court denied the plaintiffs' request for interest on the settlement funds but ordered the immediate release of the $80,000 held in trust.

The court also resolved disputes over the wording of the formal orders and the release document.

The plaintiffs and defendants brought a motion to enforce a settlement agreement reached between the parties, including the third party 1671233 Ontario Limited (167). 167's insurer had appointed counsel who agreed to the settlement on 167's behalf, but 167 subsequently refused to sign the release and issued a fourth party claim.

The court found that a valid settlement agreement was reached by counsel with ostensible authority.

Applying the factors from Milios v. Zagas, the court exercised its discretion under Rule 49.09 to enforce the settlement, finding it clear, reasonable, and not unduly prejudicial to 167.

Consequently, 167 was ordered to execute the release and its fourth party claim was stayed.

The moving party, Men's Fire, sought to be added as a party and to vary an interlocutory injunction that prevented interference with the plaintiff's archaeological assessments on its property.

The court added Men's Fire as a party on consent but dismissed the motion to vary the injunction.

The court found no evidence of an active land claim against the property, no failure by the plaintiff to comply with legislation, and no duty on the private landowner or the municipality to consult with the moving party under the circumstances.

Following a successful application to declare a municipal by-law invalid, the applicant sought costs on a partial indemnity basis up to the date of an offer to settle, and substantial indemnity costs thereafter.

The respondent argued each party should bear its own costs due to the public interest nature of the case.

The court awarded costs to the applicant, finding the public interest exception did not apply.

However, the court declined to award substantial indemnity costs under Rule 49 because the applicant's offer contained terms beyond the scope of the litigation.

The court fixed partial indemnity costs at $74,006.60, adjusting the claimed rates to 60% of substantial indemnity rates.