Dessa Booth

The defendants moved to dismiss or stay the plaintiff's action as an abuse of process, arguing the plaintiff should have amended a stayed counterclaim in a prior construction lien action instead of commencing a new proceeding.

The plaintiff cross-moved for leave under s. 38 of the Bankruptcy and Insolvency Act (BIA) to continue the action on behalf of the bankrupt corporation's creditors.

The court dismissed the defendants' motion, finding no abuse of process as the counterclaim was stayed due to bankruptcy and there was no multiplicity of proceedings.

The court also held that the plaintiff did not require s. 38 authorization because the claims sought to pierce the corporate veil against the bankrupt's alter egos, which were personal claims not belonging to the bankrupt's estate.

In an appeal arising from a summary judgment motion in a commercial dispute, the panel held that an order refusing summary judgment on an incomplete record with unresolved credibility issues is interlocutory, not final.

Reconstituting itself as the Divisional Court under the Courts of Justice Act, the panel held that the motion judge erred by failing to invite submissions on the next procedural steps after concluding that summary disposition was unavailable.

Applying the summary judgment principles in Hryniak, the panel affirmed the refusal of summary judgment but remitted the matter to the motion judge or another judge for further case management and trial directions.

The request to require a trial on the existing record only, without new evidence, was rejected.

The appellants appealed a decision of the Manitoba Court of Appeal regarding a contract for the sale of land.

The Supreme Court of Canada allowed the appeal, finding that time was not of the essence in the contract and the vendor had accepted the conditions as terms imposing obligations upon him.

The Court held that the vendor was in default and guilty of premature repudiation, restoring the trial judge's award of damages to the purchasers.