J. Dawe

The defendants brought a motion to set aside a default judgment obtained by the plaintiff bank regarding a defaulted commercial loan and guarantees for a franchise restaurant.

The court applied the five-factor test from Intact Insurance and found that the defendants did not move promptly, lacked a plausible excuse for the default, and had no arguable defences on the merits.

The defendants' arguments regarding improper service, forged signatures, ambiguous guarantee terms, and commercially improvident sale of collateral were all rejected.

The motion was dismissed with costs.

The appellant appealed his summary convictions for impaired driving and refusing to provide a breath sample.

He argued the trial judge misapprehended medical evidence regarding his uncontrolled diabetes and erred in finding no breach of his s. 10(b) Charter right to counsel of choice.

The Superior Court found the trial judge erred by placing the burden on the appellant to prove he did not waive his right to counsel of choice, rather than on the Crown to prove a valid waiver.

The appeal was allowed in part; the refusal conviction was set aside and a new trial ordered, but the impaired driving conviction was upheld using the curative proviso.

Following the dismissal of the Town of Richmond Hill's motion for an interlocutory injunction regarding alleged zoning bylaw infractions, the successful respondents sought partial indemnity costs of $3,851.04.

The Town argued that costs should be reserved to the trial judge or made payable in the cause, and disputed the quantum.

The court rejected the Town's arguments, finding no compelling reason to depart from the ordinary rule that a successful party on a motion is entitled to costs payable forthwith.

The court fixed costs at the requested amount of $3,851.04.