David Levangie

At a case conference regarding the plaintiff's motion for default judgment, the defendants indicated an intention to challenge the validity of service in Hong Kong under the Hague Convention.

The defendants' counsel appeared on a limited scope retainer solely to contest service.

The court held that it would be an abuse of process to allow the defendants to delay adjudication by retaining counsel incrementally.

The court scheduled the plaintiff's motion for default judgment and directed that any motions by the defendants to set aside service or lift the noting in default be heard at the same time.

Collingwood Aviation Partners Ltd. (CAPL) applied for a declaration that it had a common law easement and contractual rights to full access to the adjacent airport lands owned by Winterland Airfield Holdings Ltd. (WAH).

WAH had erected fences restricting CAPL's access, citing safety concerns, and sought to impose user fees and increased insurance requirements.

The court found that CAPL had both contractual and common law easement rights to unimpeded access, as the properties had a symbiotic historical relationship.

The court ordered the removal of the restrictive fencing, declared that WAH could not charge user fees for access, and dismissed WAH's application regarding insurance.

The plaintiff brought a motion under Rule 5.04(2) to amend the title of proceedings to correct an alleged misnomer, seeking to substitute 'Downtown Auto Collision Centre Inc.' for the named plaintiff 'Dealer’s Choice Preferred Collision Centre Inc.'.

The action alleged breach of a 2013 agreement.

The court found that the defendants had specifically rejected the inclusion of Downtown Auto as a party to the agreement during negotiations.

Applying the 'litigating finger' test, the court concluded the defendants would have had no reason to think the intended plaintiff was Downtown Auto.

The motion was dismissed with costs awarded to the defendants.

The landlord and tenant brought competing applications regarding the interpretation of a commercial lease renewal.

The tenant argued the lease renewed automatically, while the landlord argued a 2012 Renewal Agreement required the tenant to give six months' notice.

The court found that the tenant had established a claim for rectification based on unilateral mistake, as the landlord's agent had inserted the notice requirement without instructions and without drawing it to the tenant's attention, which amounted to unconscionable conduct.

The court ordered the lease rectified to reflect an automatic right of renewal.

The defendant, a cosmetic plastic surgeon, brought a motion to set aside a default judgment obtained by the plaintiff for unpaid anesthesiology services.

The defendant argued he failed to respond to the statement of claim because he was negotiating with the plaintiff, and raised defences of economic duress and potential violations of the Bankruptcy and Insolvency Act.

Applying the five-part test from Mountain View Farms, the court found the defendant moved promptly, had an arguable defence on the merits, and that the balance of prejudice and the interests of justice favoured having the action defended on its merits.

The motion was granted and the default judgment was set aside.

The defendants brought a motion to remove the plaintiff’s counsel and law firm as solicitors of record on the basis of an alleged conflict of interest.

They argued that the lawyer had previously interacted with one defendant while representing a related corporation during regulatory proceedings involving dealership licence suspensions, and had allegedly received confidential information and provided legal advice.

The court applied the principles governing disqualification of counsel, including the test from MacDonald Estate v Martin regarding prior relationships and confidential information.

The court found no solicitor-client relationship between the lawyer and the defendants and no evidence that confidential information about the defendants had been imparted.

As no conflict of interest or breach of duty of loyalty was established, the motion to remove counsel was dismissed.

The defendant brought a motion to set aside a default judgment arising from a claim for unpaid gambling credit advanced by a casino.

The motion relied on an exclusive jurisdiction clause in the underlying credit agreement favouring Singapore courts and on a hearsay assertion that the defendant never received the statement of claim served by substituted service.

The court held that a forum selection clause does not render proceedings void and cannot justify setting aside a judgment absent other grounds, particularly where the defendant delayed and produced no evidence of a defence on the merits.

Applying the factors governing motions to set aside default judgment, the court found no credible explanation for the defendant’s delay, no evidence of non‑service, and no arguable defence.

The interests of justice therefore did not favour granting relief.