Vera Toppings

The defendant brought a motion under Rule 37.14 of the Rules of Civil Procedure to set aside portions of an order granting the plaintiff leave to issue a writ of seizure and sale and notices of garnishment to enforce a judgment more than six years old.

The order had been obtained without notice.

The court held that the motions judge had discretion to proceed without notice given concerns that notice could allow the judgment debtor to rearrange assets.

Applying the test for leave under Rules 60.07(2) and 60.08(2), the court found the judgment creditor adequately explained the delay in enforcement and had not waived rights under the judgment.

The defendant failed to demonstrate detrimental reliance arising from the delay.

The motion to set aside the order was dismissed and the enforcement mechanisms remained in force.

In a supplementary endorsement addressing costs following a motion brought by a court-appointed forensic accountant seeking payment of additional fees, the court considered multiple claims for costs among parties and against the expert.

The motion seeking payment of an additional $288,000 beyond previously authorized funds had been dismissed.

The court reviewed the principles governing costs, including the limited circumstances in which costs may be awarded against non-parties under s.131 of the Courts of Justice Act and the court’s inherent jurisdiction.

The court concluded that the circumstances did not justify a costs award against the court-appointed expert or the Children’s Lawyer.

Claims for costs among the parties were largely rejected, with any potential claims reserved for determination by the trial judge.

A court-appointed forensic accountant brought a motion seeking payment of a final invoice for investigative work performed in complex estate and trust litigation following the death of a family patriarch.

The expert had previously estimated that completion of the mandate would cost approximately $100,000 but later submitted a substantially larger final invoice.

The court held that the expert bore the onus of justifying the amount and found the explanation for the dramatic increase unpersuasive.

In the circumstances, the expert was required to abide by the prior representation to the court and the motion for payment of the additional amount was dismissed.

Requests for production of the expert’s working papers were found premature, and a request by other professionals for reimbursement of costs was deferred to the next case management judge.

The court issued an endorsement to settle the terms of a certification order in a securities class action, following the certification of conspiracy claims.

The defendants sought to exclude 'early sellers' from the class definition and challenged the class period dates.

The court declined to exclude early sellers, finding it premature as the scope of those entitled to relief for conspiracy was uncertain.

The court also approved the class period dates as they aligned with the plaintiff's theory of the case.

Finally, the court approved the plaintiff as a suitable representative for both primary and secondary market purchasers regarding the conspiracy claim.