Dan Rosman

This decision addresses costs and the removal/retention of a writ of seizure and sale following the setting aside of a default judgment.

The plaintiff had obtained a default judgment against the defendant for sexual assault and battery totalling approximately $500,000.

The defendant successfully moved to set aside the default judgment, and the court subsequently addressed the costs of that motion, costs thrown away, and whether the writ should remain filed.

The court fixed costs for both parties at $11,439, offsetting each other, and ordered the writ to be withdrawn and vacated within 30 days.

The court considered a motion by the plaintiff to strike portions of the defendant’s statement of defence and counterclaim in a property dispute.

The court found that much of the defendant’s pleading was irrelevant, scandalous, or pleaded evidence rather than material facts, and that it amounted to an abuse of process.

The court struck numerous paragraphs and ordered the defendant to serve and file a fresh, compliant pleading, with the process to be supervised by the court.

The plaintiff, D.H. Anderson Investments Inc., sought an interim and permanent injunction to remove the defendant, Wilma Castanares, from its property and to strike portions of her statement of defence and counterclaim.

The court granted the injunction, finding that the plaintiff had a strong prima facie case for ownership, that irreparable harm would result if relief was not granted, and that the balance of convenience favoured the plaintiff.

The court found no evidence of a gift or constructive trust in favour of the defendant and held that her occupation of the property was insufficient to establish any legal or beneficial interest.

The defendant Jose Ramos brought a motion to set aside a default judgment obtained by the plaintiff Vittoria Fera, which had been granted after Ramos's statement of defence was struck for non-compliance with a timetable and failure to attend discovery.

Ramos argued he did not receive proper notice of key proceedings due to a change of address and an inactive email.

The court applied the three-part test for setting aside default judgments, considering promptness, plausible excuse, and arguable defence.

Despite Ramos's partial responsibility for not updating his address, the court found the plaintiff also bore responsibility for continuing service at an unresponsive address.

Given the serious allegations of sexual assault and battery, the court emphasized the importance of resolving the matter on its merits.

The motion was granted, setting aside the order striking the defence, the noting in default, and the default judgment, and reinstating the lawsuit.

The moving party brought a motion under Rule 38.11 to set aside portions of a partition and sale order made after he failed to appear at the application hearing.

The court found that the failure to appear was due to an administrative mistake by his newly retained counsel.

Applying the five-part test for setting aside an order, the court determined that the moving party moved forthwith, would suffer prejudice if the order stood, and had an arguable case on the merits regarding his claim for a constructive trust over the property.

The motion was granted, the disputed portions of the order were set aside, and the remaining issues were stayed in favour of an ongoing family law proceeding between the parties.

The Plaintiffs sought costs on a partial indemnity basis after the Defendants' anti-SLAPP motion to strike the Statement of Claim was dismissed.

The Defendants opposed, citing the presumption against costs under s. 137.1(8) of the Courts of Justice Act and their partial success in striking certain paragraphs.

The court found that despite the expressions not being related to public interest, the proceeding bore indicia of a SLAPP suit, including a history of litigation to silence critics, a power imbalance, and a punitive purpose.

Considering the legal uncertainty surrounding s. 137.1 at the time and the Defendants' partial success, the court declined to award costs to the Plaintiffs.

The defendants in a defamation action brought a motion to dismiss the proceeding under the anti-SLAPP provisions of the Courts of Justice Act, and a motion to strike portions of the statement of claim.

The defamation claim arose from anonymous letters distributed to condominium residents alleging corruption by the plaintiffs, who were current or former board members.

The court dismissed the anti-SLAPP motion, finding that the defendants could not rely on the provision while denying they made the statements, and that in any event, condominium board politics do not constitute a matter of public interest.

The court granted the motion to strike in part, removing paragraphs from the statement of claim that were irrelevant and vexatious.

The parties, former romantic partners and co-owners of a rental property, disputed the division of sale proceeds following their separation.

The applicant, who had exclusive possession of the lower unit for four years, sought reimbursement for property expenses.

The respondent claimed occupation rent and compensation for lost rental income due to the applicant's failure to rent out his unit after vacating it.

The court found no partnership existed under the Partnership Act and determined that the applicant was solely responsible for expenses during his occupancy.

The applicant was held liable for half the deficiency in rent for the period he failed to rent the lower unit after vacating it, and was ordered to pay the respondent's costs.