Daryl W. Schnurr

The appellants appealed an order dismissing their motion to set aside a previous consent order and seeking damages arising from an interim injunction.

The Court of Appeal upheld the motion judge's decision, finding that the doctrine of res judicata barred the request to set aside the order because the relief could and should have been sought in an earlier motion.

Furthermore, the court agreed that the earlier consent order, which dissolved the injunction without conditions, barred the appellants from subsequently claiming damages.

The appellant appealed a summary judgment and costs order.

The Court of Appeal upheld the summary judgment, finding no genuine issue for trial and confirming the motions judge's jurisdiction to hear the summary judgment motion despite the appellant's motion to discontinue under Rule 23.

The Court also upheld the solicitor and client costs award.

However, the Court set aside one paragraph of the judgment regarding the costs of a prior motion, as the motions judge lacked jurisdiction to alter an existing order.

The appeal was allowed in part.