Minutes of settlement included no provision for costs

COSTS

Minutes of settlement included no provision for costs

Applicants brought application under Business Corporations Act (Ont.), and Winding-up and Restructuring Act (Can.). Applicants commenced separate actions for orders amending allegedly unconscionable agreement and damages. Actions not pursued. Six interlocutory motions between parties. One resulted in costs award. Applicant’s first two motions resulted in judicial determinations. Applicant’s third motion resolved on consent. Applicants responded with affidavits to respondent’s two motions. Motions adjourned sine die and did not proceed. Sixth motion ended with execution of minutes of settlement of entire litigation. Settlement included no provisions for costs. No costs outlines exchanged. Applicants claimed substantial indemnity costs of $197,313, after crediting respondent for prior $27,000 costs award on motion. Respondents claimed substantial indemnity costs of $104,253, or partial indemnity of $69,495 including costs as self-represented litigant and costs of consulting prior counsel. Respondent’s claim for self-representation costs denied. Respondent unable to demonstrate lost opportunity cost. Fair and reasonable, with exception of applicant’s claims not pursued, that parties bear own costs. Applicants ordered to pay respondents $4,000 all-inclusive.

Cohlmeyer v. Ffrench (Feb. 7, 2012, Ont. S.C.J., Mulligan J., File No. 08-0361) 213 A.C.W.S. (3d) 854 (6 pp.).