Glenn Elliott Cohen

Following a successful damages claim arising from a mortgage dispute, the plaintiff sought recovery of legal costs on a substantial indemnity basis pursuant to the mortgage contract.

Although the defendants obtained a temporary stay of execution related to the conduct of the plaintiff’s former lawyer, the court found the plaintiff remained substantially successful overall.

The contractual provision supporting substantial indemnity costs was applied.

The court awarded costs slightly below the amount sought.

The plaintiff brought a motion for summary judgment relating to a mortgage debt that had been in default since 2001.

The defendants conceded judgment but sought a temporary stay of enforcement pending the determination of a separate action against their former lawyer for alleged breach of fiduciary duty and contribution or indemnity.

The court considered Rule 20.08 of the Rules of Civil Procedure and the broad discretionary authority under s. 106 of the Courts of Justice Act to stay proceedings where the interests of justice require.

Given the circumstances surrounding the initiation of the action and the alleged involvement of the former lawyer, the court concluded that the equities favoured granting a temporary stay of execution.

Judgment was granted to the plaintiff but enforcement was stayed on terms pending progress of the related litigation.