Daniel Condon

The moving party brought a motion for leave to appeal an earlier order.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving party to pay costs of $5,000 to the responding party.

The plaintiff commenced a foreclosure action regarding a Multiple Unit Residential Building (MURB) investment scheme.

The investors, who had signed powers of attorney in favour of the developer, alleged financial manipulation and breach of fiduciary duty.

Given the complex financial history, the lack of proper accounting by the mortgagee, and the overlapping shareholder oppression claims, the case management judge directed a reference to determine the mortgage accounting and related issues.

The judge also ordered a stay of the foreclosure action and oppression applications pending the reference.

The appellants appealed an order striking their third-party claim for contribution and indemnity against a securities dealer after the respondents commenced a second action alleging damages attributable to the appellants' negligence in the loss of share certificates.

The court held that, because the statement of claim expressly limited damages to the portion attributable to the appellants' negligence, there was no basis for a claim-over under the Negligence Act or under rule 29.01.

The court also upheld the refusal to preserve the third-party claim for declaratory relief, finding no prejudice and noting the appellants were not pursuing such relief on appeal.

The appeal was dismissed with costs, rendering the cross-appeal moot.