Jonathan Samuel Jacobs

The plaintiff, Upscale Getaways Inc., brought a motion to set aside a registrar's order dismissing its action for delay.

The defendant, Lais Hotel Properties Limited, opposed the motion and sought an order for security for costs under Rule 56.09.

The court found that while there was egregious delay without reasonable explanation and no inadvertence, the plaintiff moved promptly to set aside the dismissal, and the defendant would suffer no prejudice given its ongoing counterclaim arising from the same facts.

The motion to set aside the dismissal was granted, and a timetable for the action was ordered.

The defendant's request for security for costs under Rule 56.09 was denied, as there was no conduct warranting such a term, but without prejudice to a motion under Rule 56.01.

Costs were awarded to the defendant.

Following a successful application discharging two mortgages, the applicants sought substantial indemnity costs totalling over $22,000.

The court considered the factors under Rule 57 of the Rules of Civil Procedure and acknowledged that the applicants had succeeded on the merits.

However, the court found the matter was not complex and noted that the applicants had effectively avoided repayment of a valid debt through the expiration of the limitation period under the Real Property Limitations Act.

The court also considered the late filing of the applicants’ costs submissions.

In the circumstances, the court concluded the case was not appropriate for a costs award.

The applicants sought an order discharging two registered charges on real property, including a fourth mortgage granted to the respondent corporations.

No payments had been made on the mortgage since 1991, and there had been no written acknowledgment of the debt.

The court held that the Real Property Limitations Act governed the limitation period for enforcing mortgage debt rather than the Limitations Act, 2002.

Because more than ten years had elapsed without payment or a signed written acknowledgment restarting the limitation period, recovery on the mortgage was statute-barred.

The court ordered the discharge of the mortgages from title.