indemnity basis. There is a significant and important distinction
between full indemnity costs and substantial indemnity costs.
An award of costs on an elevated scale is justified in only very
narrow circumstances — where an offer to settle is engaged or
where the losing party has engaged in behaviour worthy of sanction: Davies v. Clarington (Municipality) (2009), 100 O.R. (3d)
66,  O.J. No. 4236 (C.A.), at para. 28. Substantial indemnity costs is the elevated scale of costs normally resorted to
when the court wishes to express its disapproval of the conduct
of a party to the litigation. It follows that conduct worthy of
sanction would have to be especially egregious to justify the
highest scale of full indemnity costs.
[ 9] In this case, full indemnity costs were warranted given the
factual findings that the motion judge made regarding the conduct of the appellants, especially the movement of funds out
of the country in an effort to place them out of reach of the
respondents and the instances of fabricated evidence. We would
reiterate, however, that it is only in rare and exceptional cases
where such a costs award is justified.
[ 10] Leave to appeal the costs award is dismissed.
[ 11] The appeal is dismissed, other than the amendment to
the judgment below.
[ 12] Counsel for the respondent sought an order that the
funds paid into court by order of Justice Cronk on June 23, 2017
be paid out of court to his law firm in trust. The appellants’
counsel does not oppose that order, provided that the Mareva
injunction currently extant against his clients referenced in
para. 11 of the judgment appealed from is lifted. The respondents do not oppose the lifting of the Mareva injunction. Accordingly, an order will go paying out of court the funds ordered into
court by Justice Cronk on June 23, 2017 to be paid to the
respondents’ law firm in trust. An order will also go lifting the
Mareva injunction against the appellants, once the payment out
of court has been made.
[ 13] The appellants shall pay costs of the appeal to the
respondents in the amount of $20,000, inclusive of fees, disbursements and taxes.