Vesna Vojvodic

Following a prior decision enforcing a settlement agreement and dismissing the plaintiffs’ action against certain defendants, the court determined costs of the motion to enforce settlement.

The court found the plaintiffs’ attempts to resile from the settlement led to unnecessary litigation.

Applying the discretionary factors in Rule 57.01 of the Rules of Civil Procedure and considering a prior costs offer, the court fixed partial indemnity costs at $7,500 payable to the moving defendant.

The court also raised the possibility of a solicitor reimbursement order under Rule 57.07(1)(b) if the lawyer’s conduct contributed to the unnecessary litigation.

Enforcement of the costs award against the plaintiffs was stayed pending consideration of whether their lawyer should reimburse them.

The moving defendants sought judgment enforcing an alleged oral settlement reached during a pre‑trial conference.

The responding plaintiffs disputed that a binding settlement had been made and argued that communications from the pre‑trial could not be relied upon due to settlement privilege and Rule 50.09 of the Rules of Civil Procedure.

The court held that communications made during settlement discussions, including those occurring at a pre‑trial conference, may be admitted where necessary to prove the existence or terms of a settlement agreement.

Based on uncontradicted affidavit evidence from counsel, the court found that the plaintiffs made an offer to dismiss the action against the moving defendants without costs and that the offer was accepted.

The court concluded a valid settlement existed and exercised its discretion to enforce it.

The defendants brought a motion for directions regarding the conduct of the plaintiff’s counsel during an examination for discovery, alleging obstruction, coaching of the witness, and improper interruptions.

They sought an order requiring the plaintiff to re-attend the discovery at her own expense and costs thrown away.

The court held that although the plaintiff’s counsel frequently interrupted and lacked familiarity with litigation procedures, the conduct stemmed from inexperience and an overly protective approach rather than obstructionist behaviour.

The examination had been prematurely terminated and remained incomplete.

The court ordered the plaintiff to re-attend for discovery but required each party to bear its own costs.