Cameron D. Neil

The appellant sought to set aside a default judgment entered seven years earlier after her pleadings were struck for non-compliance with a costs order imposed as a condition of an adjournment.

The motion judge dismissed the motion, finding it was not brought promptly or pursued diligently and disbelieving the explanation offered.

On appeal, the court found no error in the motion judge's application of the test under Rule 19.08 for setting aside a default judgment, including findings of prejudice and tarnishing of the administration of justice.

The court considered a motion by the defendants (the Owners) for security for costs in a construction lien action.

The Owners argued that the plaintiff, Backyard XP Inc., was a shell company with insufficient assets to pay costs if unsuccessful.

The court found that the Owners met the threshold for security for costs and ordered Backyard to post $25,000, staggered in two tranches.

The court also addressed the impact of a counterclaim and apportioned the security accordingly.

Costs of the motion were awarded to the Owners, proportionate to their success.

This is a construction lien action and counterclaim arising from a fixed-price drywall contract.

The plaintiffs, Nikom Construction Inc. (contractor) and Invoice Payment System Corporation (factoring company), sued for unpaid invoices.

The defendant, The Block Inc. (owner), counterclaimed for damages due to alleged contract breaches, deficiencies, and abandonment by Nikom.

The court found that Nikom repudiated the contract by failing to provide adequate manpower and supervision, and by having significant deficiencies, rather than The Block repudiating by late payments.

The court also ruled that the "indoor management rule" did not bind The Block to unauthorized invoice approvals.

Consequently, the plaintiffs' action was dismissed, their liens discharged, and The Block's counterclaim for costs to complete and correct Nikom's work was granted in part, with the plaintiffs ordered to pay $325,824.41 plus pre-judgment interest.

The defendants, Mirella Cesario-Valela and Vito Valela (the 'Owners'), sought leave to issue a third-party claim against Garrison Creek Construction Inc. ('Garrison'), alleging it was an alter ego of the plaintiff, Backyard XP Inc. The court dismissed the motion, finding that under the Construction Act, a third-party claim must be for contribution or indemnity, not for damages as proposed by the Owners.

The court emphasized that the Act's scheme does not permit adding non-parties by counterclaim or third-party claim for general damages, even if judicial efficiency might suggest otherwise.

The court-appointed receiver brought a motion for an approval and vesting order (AVO) to sell a real estate development property to a third-party purchaser.

A second mortgagee and joint venture participant brought a cross-motion to redeem the property or, alternatively, for approval of its credit bid.

The court dismissed the cross-motion, finding that allowing a redemption after a court-approved sale process had concluded would undermine the integrity of the process.

The court granted the receiver's motion, holding that the proposed sale satisfied the Soundair principles, as the receiver acted providently, considered all stakeholders' interests, and conducted a fair and commercially efficacious process.

The appellants, purchasers of a new home, appealed an order declaring they repudiated an agreement of purchase and sale by failing to close and dismissing their counter-application for specific performance.

The Court of Appeal dismissed the appeal, finding no error in the application judge's conclusions.

The lower court correctly found that the vendor satisfied the requirements to extend the closing date due to "Unavoidable Delay" (COVID-19 related), was not obligated to deliver the occupancy permit before closing, and did not act in bad faith by refusing a further extension.

The appellate court affirmed the application judge's interpretation of the agreement and factual findings, noting they were entitled to deference.

The plaintiff sought costs of a motion necessitated by the defendant's failure to pay a prior costs order.

The defendant had stopped payment on a cheque and indicated no intention to pay voluntarily.

The court found the defendant's conduct reprehensible and awarded the plaintiff costs of the motion on a substantial indemnity basis in the amount of $14,105.44.

In a construction lien action, the defendant homeowners moved to amend their statement of defence and counterclaim and to substitute the affidavit evidence of a new expert witness for one who died after preparing his report.

The plaintiff contractor opposed the motion, arguing that the amendments would cause prejudice and delay the summary nature of the proceedings.

The court granted the motion, finding that the plaintiff failed to demonstrate non-compensable prejudice and that it was in the interests of justice to allow the defendants to rely on a live expert witness and fully articulate their claims regarding newly discovered deficiencies.

The plaintiff was awarded $10,000 in costs thrown away.

The Corporation of the Town of Lincoln applied for declarations and a permanent injunction against multiple respondents for violating a municipal bylaw concerning fill importation and site alteration.

The respondents had contravened permit conditions, breached a stop work order, and continued illegal dumping.

While the Shire respondents conceded liability for the declarations and injunction, they disputed the scale and quantum of costs.

The Cascio respondents did not appear.

The court granted the declarations and permanent injunction, finding clear bylaw breaches and no exceptional circumstances to refuse the injunction.

The Town was awarded partial indemnity costs of $54,898, with responsibility apportioned 25% to the Shire respondents and 75% to the Cascio respondents, primarily due to the Cascio respondents' profit motive and failure to cooperate in shortening the proceedings.

This decision addresses the costs arising from a successful motion by a Judgment Creditor to enforce two notices of garnishment against funds held by Renaud Law on behalf of two Debtors.

The Judgment Creditor sought costs on a substantial or partial indemnity basis.

One Debtor requested deferral of the costs decision pending a motion to set aside the default judgment.

The court found the garnishment motion necessary and complex due to issues raised by the Debtors.

It declined to defer the costs decision, noting the delay by the Debtors in challenging the default judgment.

The court awarded the Judgment Creditor costs on a partial indemnity basis, finding the amount fair and reasonable.

The moving party sought costs for a motion for non-party productions.

The responding parties consented to the relief sought, but only after the moving party had prepared and filed its motion materials.

The moving party argued the motion was necessitated by the responding parties' failure to cooperate and obtain relevant records from their bank and accountant.

The court agreed, finding the responding parties had an obligation to inquire and obtain relevant documents, and their inaction necessitated the motion.

Costs were awarded to the moving party fixed at $5,000.

The applicant moved to amend a previous Superior Court order that dismissed its action, seeking to add a clause stating the dismissal was without prejudice to a parallel Small Claims Court action.

The court found that the applicant had obtained a default judgment in Small Claims Court without notice to the respondent and failed to disclose this to the Superior Court judge who dismissed the action the following day.

The court dismissed the motion, finding no justification to interfere with the Small Claims Court process and noting that the requirements for amending an order under Rule 59.06 were not met.

The court also noted significant evidence suggesting the applicant was a fictional entity created by a declared vexatious litigant using aliases.

The plaintiff, Enercare, brought a motion to strike the defendant Grand HVAC's counterclaim under Rule 21.01(1)(b) for failing to disclose a reasonable cause of action.

The counterclaim alleged breach of contract and conversion regarding water heaters Grand HVAC claimed to have purchased from Enercare, and sought relief on behalf of customers.

The court granted the motion, finding the breach of contract and conversion claims lacked necessary material facts, but granted leave to amend.

Claims seeking relief on behalf of third-party customers were struck without leave to amend.

The appellant, Darlene Welton, appealed a trial judge's award of compensation for her services as Vice President of Marketing and Sales for Stonebrook Properties Inc., arguing it was inadequate on the facts and law.

The Court of Appeal dismissed the appeal on the merits, upholding the trial judge's quantum meruit assessment of 1.5% commission for sales and dismissing claims for additional construction and warranty work due to lack of evidence or reasonable expectation of payment.

However, the Court granted leave to appeal the trial costs award, finding the respondents' last-minute settlement offer unreasonable and not in the spirit of Rule 49, and awarded the appellant her pre-trial and trial costs.

The respondent (Stanley Capobianco) brought a motion to strike specific paragraphs from the applicant's (Paul Offierski) Statement of Defence and Counterclaim, arguing they were irrelevant, argumentative, scandalous, or disproportionate, particularly concerning costs and casting the respondent in a bad light.

The applicant contended the impugned paragraphs were relevant and responsive to the respondent's claims for punitive damages, legal expenses, and property appraisal fees, and to demonstrate the respondent's conduct.

The court dismissed the motion, finding the impugned paragraphs were responsive to the respondent's claims, not solely related to costs, and did not create disproportional complexity, especially given the nature of the respondent's own pleadings.

The appellant appealed a judgment of the Superior Court of Justice dismissing her motion to set aside her noting in default and granting default judgment to the respondent.

The appellant argued that the motion judge erred in his assessment of the merits of her defence.

The Court of Appeal affirmed the lower court decision, finding the appeal to be without merit and that there was no basis to interfere with the discretionary decision of the motion judge.

Costs were awarded to the respondent.

The plaintiff brought two actions against the defendants for unpaid commissions and remuneration for work on a technical audit related to a condominium development project.

The plaintiff claimed she had a verbal agreement for a 2% commission or $220,000 per year.

The court found no such agreement existed and instead applied quantum meruit, awarding the plaintiff $182,152.81 based on an industry-standard 1.5% commission rate.

The plaintiff's second claim for technical audit work was dismissed on the basis of unjust enrichment principles, as there was no reasonable expectation of payment.

The applicants sought an oppression remedy and monetary judgment against the respondents, alleging a scheme where the individual respondent and related corporations duped the applicants into investing over $1.6 million in a modular home business.

The investment was diverted through a "shell game" of corporations, depriving the applicants of their promised equity interest and decision-making role.

The court found clear self-dealing and oppression, granting the applicants the requested relief, including a monetary judgment equivalent to their investment.

The applicant sought injunctive relief and damages regarding a right-of-way over the respondents' land, alleging interference with its use and enjoyment, and requesting contribution to maintenance and snow clearing.

The court dismissed the application, finding that the right-of-way was limited to vehicular access to the applicant's garage, as determined by the instrument creating it and historical circumstances.

The respondents' fence was found not to substantially interfere with this purpose.

The court also determined that the destruction of stone pillars on the right-of-way was not unlawful given the land's Land Titles Absolute status, which extinguished possessory claims.

Furthermore, the respondents were not obligated to contribute to snow removal as they did not use the right-of-way in winter.

The claim for damages was dismissed as it could not be advanced by application.

The applicants sought ex parte interim relief in an application alleging extensive dishonest conduct, including impersonation of a business through a similarly named corporation, diversion of funds, and theft of business opportunities.

The court held that while the record did not show a clear likelihood that assets would be moved out of the jurisdiction, the evidence disclosed strong and compelling evidence of fraud.

Applying the Mareva injunction principles and the inference-based approach recognized in the fraud cases, the court found a real risk that assets could be hidden, dissipated, or removed.

The court granted limited ex parte preservation relief, including a Mareva injunction, freezing of bank accounts, a prohibition on payment of insurance proceeds, a stay of certain actions, and a CPL, with a prompt return date.