Victor L. Freidin

Following a civil trial, the court addressed the issue of costs where the plaintiff achieved only modest recovery exceeding the Small Claims Court jurisdiction.

The defendants had failed to fulfill settlement obligations, engaged in obstructionist conduct during the litigation, and contributed significantly to the continuation and length of the proceedings.

However, the court found the plaintiff’s litigation strategy unfocused and excessively costly, contributing to unnecessary complexity and expense.

Balancing these factors under the Rules of Civil Procedure, including Rule 57.05(1), the court exercised its discretion to award reduced costs rather than the full amount sought.

The defendants were ordered jointly and severally to pay a lump sum costs award.

The plaintiff brought a civil action arising from real estate transactions involving two properties and agreements with a development company.

The court considered whether an agreement relating to the plaintiff’s interest in one property had been fulfilled and whether the defendant corporation was obligated to indemnify the plaintiff for liabilities arising from a mortgage and overdraft related to another property held in trust.

The court held that claims relating to the first property were barred by the Limitations Act, 2002 and failed.

However, the court found the plaintiff held the second property as bare trustee for the corporate defendant pursuant to a declaration of trust containing an indemnity clause.

The corporate defendant was therefore liable to indemnify the plaintiff for payments made toward a deficiency judgment and overdraft judgment arising from the mortgage obligations.