Bryan Rumble

Two related applications were brought to determine the priority and validity of $283,508.64 in disputed fees claimed by the first mortgagees following a power of sale.

The second mortgagee argued the fees were not part of the first mortgage and violated s. 8(1) of the Interest Act.

The court held that the forbearance agreement containing the fees did not form part of the first mortgage and could not be enforced in priority to the second mortgage.

Furthermore, the court found the default and prepayment fees constituted unenforceable penalties under s. 8(1) of the Interest Act, meaning they could not be claimed against the mortgagor or guarantor either.

The parties made a consent request to adjourn the pretrial and fixed trial dates in a solicitor's negligence action.

The request was based on a recent order allowing the defendants to amend their Statement of Defence.

The court noted that the plaintiff had failed to serve an expert report on the standard of care despite the passage of eight years and a consent timetable.

The court dismissed the request, holding that fixed trial dates in Toronto are only adjourned in exceptional circumstances and that breaching timetabling orders does not justify an adjournment.

The defendants in three related actions (a tort action, an OPCF underinsured motorist action, and a solicitor's negligence action) brought motions to consolidate the proceedings or have them heard together, and to dispense with the deemed undertaking rule.

The plaintiff opposed the inclusion of the solicitor's negligence action and the waiver of solicitor-client privilege.

The court ordered that the three actions be tried together or one after the other, subject to the trial judge's discretion.

However, the court held that the plaintiff's waiver of solicitor-client privilege applied only to the solicitor's negligence action and refused to dispense with the deemed undertaking rule for evidence obtained in that action, protecting the plaintiff's privilege in the tort and OPCF actions.

The plaintiffs sued the defendant municipality following a motor vehicle accident.

After the action was set down for trial, the defendant sought leave under Rule 48.04 to bring a motion for summary judgment based on the plaintiffs' failure to provide notice within 10 days as required by the Municipal Act.

The court found no substantial and unexpected change in circumstances, but granted leave on the basis that the summary judgment motion had merit and proceeding with it would not cause non-compensable prejudice to the plaintiffs.