Bassam Lazar

Following a prior application decision, both sides sought costs.

The applicant succeeded on the issue of lack of notice regarding a proposed sale of corporate assets, while the respondents succeeded on the issue concerning entitlement to certain chattels.

The court reviewed the purposes of costs awards and noted the absence of settlement offers.

Considering the mixed success and the relative importance of the issues, the court declined to award costs to either party.

The applicant shareholder sought an injunction preventing the sale of corporate real property and a mandatory order for the return of personal chattels allegedly left on the property.

The court found that the proposed sale constituted a disposition of assets outside the ordinary course of business and required a properly noticed special meeting of shareholders under the Business Corporations Act.

The applicant had received insufficient notice and was deprived of dissent rights associated with such a transaction.

The court therefore set aside the proposed sale and maintained the injunction preventing it.

However, the request for return of personal chattels was dismissed due to unresolved credibility issues and insufficient evidence on the paper record.

The defendant brought a motion to set aside an order striking out its statement of defence and dismissing its counterclaim, which was obtained without notice after the defendant failed to comply with an earlier order requiring it to satisfy undertakings.

The court reviewed conflicting case law on whether an order obtained without notice pursuant to an earlier order made on notice falls under Rule 37.14(1)(a).

The court concluded it had jurisdiction to hear the motion but declined to set aside the order, finding the defendant's complete and ongoing failure to comply with its undertakings and court orders justified the dismissal.

The motion and a supplemental motion to set aside the noting in default were dismissed.