Alan S. Price

The appellant appealed an order requiring her to pay the fees and disbursements of an equitable receiver.

A prior court order had provided that if the appellant paid the outstanding judgment by a certain date, any further equitable receivership costs would be to the account of another party.

The appellant satisfied the judgment by the deadline, but the order under appeal erroneously included costs incurred after that date.

The respondent agreed the order was in error.

The Court of Appeal allowed the appeal, set aside the relevant paragraph of the order, and referred the matter back to the motion judge for reassessment.

The appellants appealed a motion judge's refusal to allow them to amend their statement of defence to include a counterclaim, her refusal to stay a summary judgment granted on a defaulted mortgage, and her refusal to enjoin the respondent from exercising its power of sale.

The Court of Appeal dismissed the appeal, finding that the proposed counterclaim regarding an improvident sale was no longer viable because the sale did not occur.

The court also held that the appellants could not rely on the delay in enforcement due to forbearance agreements to invalidate the notice of sale.

The appellants appealed a judgment finding them in breach of a vehicle lease for failing to maintain insurance.

The Court of Appeal dismissed the appeal, holding that the respondent was entitled to act on the default and was not obligated to exercise its option to place the insurance itself or accept proposed replacement insurance, especially after learning the entities arranging the insurance were under investigation for fraud.

The tenant appealed a decision of the Landlord and Tenant Board, arguing the Board erred in finding the landlord acted in good faith and that the notice of termination was sufficient.

The Divisional Court dismissed the appeal, finding no error of law in the Member's decision.

The Court also dismissed the tenant's motion to adduce fresh evidence, noting it would not have changed the finding of good faith.

The appellant appealed a summary judgment, arguing the motion judge erred in refusing an adjournment to examine a non-party and in finding no genuine issue for trial regarding repayment and forgery of a promissory note.

The Court of Appeal dismissed the appeal, finding the motion judge properly exercised his discretion to refuse the adjournment due to the appellant's lack of due diligence.

The Court also held that the appellant's forgery claim could not raise a triable issue because he had explicitly admitted signing the note in his statement of defence, and no motion to withdraw the admission under Rule 51.05 had been brought.

The appellants appealed an order dismissing their motion to set aside a noting in default and a subsequent default judgment.

The Court of Appeal allowed the appeal, finding that the motion judge was not given a full picture of the merits.

The Court noted several factors favouring setting aside the default: the haste of noting in default, the short period of delay, the absence of prejudice to the respondent, and the availability of a defence.

The default judgment and noting in default were set aside, and the time for delivering a statement of defence was extended.

Following the release of the majority reasons for judgment dismissing the appeal, the Court of Appeal received written submissions on costs.

Having regard to the respondents' success, the complexity and novelty of the issues, and the equities between the parties, the court awarded the respondents their costs on a partial indemnity basis fixed at $38,000 all inclusive.

The appellant condominium corporation and the original developer entered into a reciprocal agreement to share expenses for a recreational facility.

The developer's successor in title, the respondent, refused to pay the interim expenses.

The appellant argued that the positive covenant to pay expenses ran with the land or was enforceable under the English benefit and burden or conditional grant exceptions.

The Court of Appeal held that positive covenants do not run with freehold land and declined to adopt the English exceptions, stating that any reform to this area of property law must be undertaken by the legislature.

The appeal was dismissed.