James Murray Butson

The applicant sought an extension of time to perfect an appeal to the Court of Appeal from an order requiring her to submit to a mental capacity assessment.

The respondent condominium corporation opposed the extension, arguing that the underlying order was interlocutory and therefore the Court of Appeal lacked jurisdiction to hear the appeal.

The court found that the order was indeed interlocutory in nature, as it was procedural and did not finally dispose of the rights of the parties.

The court refused to grant the extension, finding that it would not be proportionate or in the interests of justice to prolong proceedings given the enormous costs incurred relative to the amounts in issue, and that the appeal should have been brought to the Divisional Court.

The plaintiff bank sought summary judgment against the defendant guarantor for a mortgage deficiency.

The defendant argued her guarantee was released due to lack of notice regarding mortgage renewal and the bank's negligence in withdrawing funds, and challenged the quantum of damages.

The court found that a default occurred and the guarantee remained valid and enforceable, as the mortgage was not renewed and the bank's errors did not release the guarantor.

However, the court identified genuine issues requiring a trial regarding the appropriateness of the claimed damages, including administrative fees, property management fees, real estate commission, and legal fees.

Consequently, the motion for summary judgment was denied, and a mini-trial was ordered to determine the quantum of damages.

A mortgagee applied to pay surplus sale proceeds from a power of sale into court where competing claims existed between joint mortgagors and an execution creditor.

One respondent had filed a consumer proposal under the Bankruptcy and Insolvency Act and argued the execution creditor’s writ could not attach to her share of the surplus due to the statutory stay.

The court held that a writ of execution filed with the sheriff constitutes an encumbrance and a subsequent encumbrancer under s. 27 of the Mortgages Act.

Accordingly, the execution creditor had to be paid from the surplus before any residue became payable to the mortgagors.

The remaining residue was divided equally between the joint owners.

Following dismissal of the plaintiff bank’s summary judgment motion on personal guarantees under the simplified procedure, the defendants sought substantial indemnity costs of over $18,000.

The court rejected arguments that contractual provisions or the plaintiff’s decision to pursue summary judgment justified elevated costs.

The court held that substantial indemnity costs generally require reprehensible conduct, which was not established.

The claimed hours and duplication caused by a change of counsel rendered the defendants’ bill excessive.

Costs were therefore fixed on a partial indemnity basis in a reduced all‑inclusive amount.