J. Ross Macfarlane

Following dismissal of the plaintiffs’ action after a status hearing, the successful defendants sought costs.

The court determined that partial indemnity costs were appropriate because there were no offers to settle affecting the scale of costs.

The litigation involved a relatively simple breach of contract and negligence claim concerning alleged defects in a house purchased by the plaintiffs, with limited procedural activity over several years before dismissal.

The court also held that additional disbursements arising from a defendant’s decision to retain out‑of‑town counsel should not be borne by the unsuccessful plaintiffs.

Each successful defendant was awarded a fixed all‑inclusive costs amount.

At a status hearing under Rule 48.14 of the Rules of Civil Procedure, the plaintiffs were required to show cause why their action should not be dismissed for delay after it was struck from the trial list and not restored within 180 days.

The court applied the two-part test requiring a reasonable explanation for delay and proof that the defendants would not suffer non-compensable prejudice.

Although the court found little evidence of actual prejudice given earlier discovery evidence and expert reports, the plaintiffs failed to provide any reasonable explanation for prolonged inactivity in prosecuting the action.

Significant unexplained delays occurred both before and after the action was struck from the trial list.

The court concluded that the plaintiffs failed to satisfy their onus and dismissed the action for delay.

The plaintiffs moved for summary judgment to enforce personal guarantees of loans advanced to corporate defendants.

The guarantors argued there were triable issues regarding the plaintiffs’ possession of collateral property and the postponement of a mortgage securing the loans.

The court held that possession of collateral awaiting sale did not require immediate accounting and did not bar enforcement of the guarantees.

The court also found that the guarantors were aware of and acquiesced to the refinancing arrangement that resulted in postponement of the plaintiffs’ mortgage.

Finding no genuine issue requiring a trial, the court granted summary judgment against the guarantors and declaratory relief against another defendant.

A guarantor brought a motion to set aside an order striking her statement of defence and affidavit and to set aside a default summary judgment obtained by a bank arising from loan guarantees executed in connection with corporate borrowing.

The moving party argued she lacked independent legal advice, had limited English proficiency, and was dominated by her spouse when signing the guarantees.

The court acknowledged serious credibility concerns and delay but found potential prejudice to the guarantor if she were denied the opportunity to defend the action.

As the bank’s interests could be protected by maintaining existing execution and garnishment proceedings, the court set aside the order striking the defence and the default judgment.

The moving party was ordered to pay the bank’s thrown-away costs forthwith.