In Ontario, the winner of a stage of litigation is usually awarded back legal fees. These can be partial indemnity (approx. 60% of actual fees + 100% of disbursements), substantial indemnity (approx. 90% of actual fees + 100% of disbursements) or full indemnity (100% of actual fees + 100% of disbursements).
If you’re a business suing a party that owes you money, the easiest way to ensure you get full indemnity fees back is to have a clause in your contracts setting out that this is what you’re entitled to. The Supreme Court of Canada has held, in Bank of America v. Mutual Trust Co., 2002 SCC 43 , in enforcing a compound interest rate in a contract, that:
“Contract law is not the enemy of parties to an agreement but, rather, their servant. It should not frustrate their mutually agreed intentions but, instead, absent overriding policy concerns, should permit those parties to obtain the benefit of their intended agreement.”
We have successfully relied on this caselaw over and over again to obtain full indemnity costs for our clients whose contracts have full indemnity wording.
If you’re not getting full indemnity costs in your successful law suits, reach out and let’s talk about how we can help you.
Inga B. Andriessen, Senior Lawyer