D. Fenig

The appellant, a lawyer who acted for a mortgagee in enforcement proceedings, appealed a Small Claims Court judgment that found him jointly and severally liable for $9,000 in punitive damages and $5,750 in costs.

The Divisional Court allowed the appeal, finding that the Deputy Judge erred in law by awarding punitive damages against the lawyer without finding any primary liability, independent actionable wrong, or duty of care owed to the mortgagor.

The judgment against the lawyer was set aside.

The defendant sought leave to appeal an order setting aside a noting in default and default judgment, which was granted on the condition that he pay half the judgment amount into court.

The defendant argued there was good reason to doubt the correctness of the order.

The Divisional Court dismissed the motion, finding the condition was an exercise of the motion judge's discretion and the issue was not of sufficient importance to the public or the administration of justice to warrant leave to appeal.