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The Court of Appeal allowed Johan Nielsen’s appeal, set aside vexatious litigant and special costs orders, and remitted his costs application for rehearing.
The Court refused to set aside a Notice of Discontinuance in a judicial review over CRB/CERB eligibility, finding no trickery and no reasonable prospect of success.
The court stayed proceedings after finding the defendants abused process by filing a response and counterclaim after a settlement had already ended the dispute.
Assessment of costs after a discontinued judicial review. The Federal Court allowed part of the Respondent’s bill, awarding $1,075.20 payable by the Applicant.
Notice is the operative trigger for arrears; the Notice of Discontinuance filed May 17, 2019 precluded looking back past the later effective notice, confusion over jurisdiction contributed to delay but did not justify ignoring the discontinuance, and effective notice to the payor was personal service of the 2019 PSA application on January 29, 2020; accordingly table child support was ordered from February 1, 2020 and arrears computed to $16,059 with a structured payment plan, while retrospective claims earlier than the effective notice were denied and administrative recalculation was not avai…
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The court refused to set aside two notices of discontinuance, holding the action was at an end and the summary trial application could not proceed.
The court held the second action was a duplicative proceeding and granted a stay until costs from the first action were taxed and paid, awarding Mr. Clark costs.
The court struck Zi An Wang’s claim against opposing counsel and the law firm, finding the pleaded communications were absolutely privileged and no duty of care was owed.
The Court found that only the Settlement Agreement signed in April 2019 constituted the binding agreement between the parties; the March 20, 2019 correspondence did not contain all essential contractual elements and could not override or constitute a separate final settlement. The reassessments of May 2019 implemented the signed Settlement Agreement and the Court therefore allowed the respondent's motion and dismissed the appellant's motion and appeal with costs.
Source excerpt
Motions dismissed because the sole affidavit evidence failed to comply with Rule 72 and contained inadmissible opinions, legal conclusions and unspecified double hearsay; no direct evidence from appellants or agent was provided; appellants failed to establish fraud or newly discovered facts and did not meet the high, discretionary threshold required to set aside judgments given the public interest in finality.
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