C. A. Tucker

Following a successful motion for summary judgment on a mortgage, the plaintiff sought costs on a full indemnity basis pursuant to the mortgage terms.

The defendant, who was self-represented, declined to provide submissions on costs despite being given the opportunity by the court.

The court considered the legal complexity of the defences raised and the contractual provision providing for substantial indemnity costs.

The court held the amount claimed by the plaintiff was appropriate and ordered the defendant to pay costs in the amount sought.

Following separation after an 18‑year marriage, the court determined issues of child support, spousal support, equalization of debts, and division of a pension.

Each parent had primary residence of one child.

Applying the Child Support Guidelines, the court ordered offset child support based on the parties’ respective incomes, with payments commencing January 1, 2011.

The court also ordered spousal support of $500 per month, recognizing the significant income disparity and long-term marriage but declining to equalize net disposable incomes.

The respondent was held responsible for certain matrimonial debts and cash withdrawals and ordered to reimburse the applicant for utilities and half of joint debts, with pension valuation and division to occur under the Pension Benefits Act.

The appellant law firm appealed a trial judgment finding it liable for unpaid forensic accounting services rendered by the respondent consulting firm.

The services were requested by a partner of the law firm who subsequently died.

The appellant argued that under s. 13 of the Evidence Act, the respondent's evidence regarding the retainer required corroboration because the partner was deceased.

The Divisional Court dismissed the appeal, holding that the statutory protection of s. 13 applies only to heirs, next of kin, executors, administrators, or assigns, and cannot be extended to a law firm partnership.

The defendants appealed a motion judge's decision dismissing their application for security for costs and awarding substantial indemnity costs against them.

The defendants argued the corporate plaintiff failed to prove impecuniosity because it did not provide evidence that its creditors refused to fund the litigation.

The Divisional Court dismissed the appeal, holding there is no absolute requirement in every case for a plaintiff to show creditors declined to fund the litigation to establish impecuniosity.

The court also upheld the motion judge's findings on the merits of the claim and the costs award.

The defendant brought a motion under Rule 21.01(1)(b) of the Rules of Civil Procedure to strike a paragraph of the plaintiff’s amended statement of claim alleging intentional infliction of mental suffering arising from a false accusation of theft in the employment context.

The defendant argued the pleading failed to disclose a reasonable cause of action under the elements established by the Court of Appeal for the tort of intentional infliction of mental suffering.

The court held that, at the pleadings stage, the alleged factual matrix—including a false accusation of criminal conduct against a long‑term employee—could potentially satisfy the requirement of flagrant or outrageous conduct calculated to cause harm resulting in a visible and provable illness.

Accepting the pleaded facts as true, the court found it was not plain and obvious the claim would fail.

The motion to strike was therefore dismissed.

A guarantor brought a motion to set aside an order striking her statement of defence and affidavit and to set aside a default summary judgment obtained by a bank arising from loan guarantees executed in connection with corporate borrowing.

The moving party argued she lacked independent legal advice, had limited English proficiency, and was dominated by her spouse when signing the guarantees.

The court acknowledged serious credibility concerns and delay but found potential prejudice to the guarantor if she were denied the opportunity to defend the action.

As the bank’s interests could be protected by maintaining existing execution and garnishment proceedings, the court set aside the order striking the defence and the default judgment.

The moving party was ordered to pay the bank’s thrown-away costs forthwith.

On an interim family law motion, the court addressed issues of spousal support, child support, corporate control, property taxes, and sale of the matrimonial home following separation.

The respondent sought imputation of income to the applicant and the sale of the matrimonial home, while the applicant sought support at the high range of the Spousal Support Advisory Guidelines and joint signing authority over a jointly owned company.

The court declined to order the sale of the matrimonial home, finding the request premature given unresolved equalization issues and the presence of other assets.

The court set interim child and spousal support based on the respondent’s income and declined to impute income to the applicant while she pursued education to become self-supporting.

The applicant was granted joint signing authority on the company accounts.