A.J. Esterbauer

The defendants, Jiangsu Sainty Sumex Tools Corp. Ltd. and Canadian Tire Corporation, Limited, moved to set aside a default judgment granted against Jiangsu Sainty Sumex and its prior noting in default.

Canadian Tire also sought to set aside or vary the judgment, particularly its in rem declarations concerning intellectual property rights, arguing they were non-binding on Canadian Tire.

The default judgment was obtained by the plaintiff without notice to counsel for either defendant and without full disclosure of material facts to the court, including a Trademark Opposition Board decision against the plaintiff's claimed trademark, an expired patent, and ongoing discussions with the defaulting defendant's counsel.

The court found the plaintiff's conduct inappropriate and set aside the default judgment due to lack of notice and non-disclosure.

The noting in default for Jiangsu Sainty Sumex was also set aside, conditional on the defendant posting security for damages and costs, providing an affidavit of documents, and producing a witness for discovery, to ensure the matter proceeds to a full trial on the merits.

Following a finding of civil contempt against a respondent and his former solicitor for bartering non-compliance with a document production order, the court held a penalty hearing.

The court refused to allow the contemnors to revisit the initial contempt finding.

Finding that the contemnors' actions resulted in the disappearance of highly relevant documents and deprived the applicant of a fair hearing, the court struck the respondents' responding material and granted default judgment.

To denounce and deter the serious misconduct of bartering compliance with a court order for personal advantage, the court sentenced both the respondent and his former solicitor to 90 days of incarceration.

The defendant law firm moved under Rule 24.01 of the Rules of Civil Procedure to dismiss a professional negligence and conflict of interest action for delay.

The action had been commenced in 1993 concerning legal advice provided in a 1987 building code appeal and alleged conflict arising from representation of another developer in 1990.

Over more than two decades the plaintiff repeatedly failed to move the case forward, delayed discoveries, postponed expert evidence for many years, and allowed significant periods of inactivity.

The court found the delay both inordinate and inexcusable and concluded that the presumption of prejudice to the defendant had not been rebutted.

The court also held the delay constituted an abuse of process under the court’s inherent jurisdiction.

The defendants brought motions for security for costs against the plaintiffs.

The plaintiffs sought leave to file a supplementary affidavit regarding their alleged impecuniosity, which was served six months after the deadline set by a court-ordered timetable.

The court denied leave, finding that plaintiffs' counsel failed to provide a reasonable, good faith explanation for the delay and had ignored the court's explicit direction to research the evidentiary requirements for impecuniosity before drafting the initial materials.

On a Commercial List motion, the moving party sought an order under Rule 57.07 of the Rules of Civil Procedure requiring a former solicitor for the opposing parties to personally pay costs of the action on a substantial indemnity basis.

The hearing was scheduled to proceed but the respondent sought an adjournment due to medical issues following recent cardiovascular surgery.

The court granted the adjournment but addressed the issue of costs thrown away resulting from the late notice of the health issue.

The court held that parties must promptly communicate medical conditions that may affect scheduled hearings to reduce unnecessary costs.

Partial indemnity costs of $10,000 were ordered payable by the respondent to compensate the moving party for preparation costs rendered useless by the last‑minute adjournment.