Julien Bonniere

Two related applications were brought to determine the priority and validity of $283,508.64 in disputed fees claimed by the first mortgagees following a power of sale.

The second mortgagee argued the fees were not part of the first mortgage and violated s. 8(1) of the Interest Act.

The court held that the forbearance agreement containing the fees did not form part of the first mortgage and could not be enforced in priority to the second mortgage.

Furthermore, the court found the default and prepayment fees constituted unenforceable penalties under s. 8(1) of the Interest Act, meaning they could not be claimed against the mortgagor or guarantor either.

The mortgagee brought a motion for judgment seeking possession of the property and payment of amounts due under a second mortgage, while the mortgagor brought an application for a reference to determine the amounts owing.

The mortgagor disputed various administrative and legal fees claimed by the mortgagee.

The court disallowed all disputed fees, finding no evidence they reflected real costs legitimately incurred, rendering them unenforceable penalties and violations of section 8 of the Interest Act.

The court determined the amounts owing based on principal, undisputed interest, and condominium arrears, ordered vacant possession, and awarded costs to the self-represented mortgagor.

The plaintiffs in a medical malpractice action brought a motion to extend the time to set down the action for trial and for a new timetable.

The defendants opposed the motion, arguing the plaintiffs failed to provide an acceptable explanation for the delay and relying on the presumption of prejudice.

The court applied the two-part test from Faris v Eftimovski, finding that the plaintiffs provided an adequate explanation for the delay in the context of seeking further discovery and expert reports.

The court also found that the defendants would suffer no non-compensable prejudice, as clinical records were available, discoveries had been conducted, and expert reports exchanged.

The motion was granted, and a new timetable was established.

The defendant brought a motion to amend its statement of defence to add a counterclaim against the plaintiff.

The proposed counterclaim alleged intentional interference with economic relations and inducing breach of contract, based solely on the plaintiff's commencement of the underlying action.

The court dismissed the motion, finding that the proposed counterclaim was legally untenable because commencing a lawsuit does not constitute an unlawful act and the defence of justification would apply to the inducing breach of contract claim.