J. Vamvakidis

The defendants brought a motion to set aside an order by Master Haberman, which had struck their statement of defence and dismissed their counterclaim due to their counsel's late attendance.

They also sought to set aside a Registrar's noting in default, default judgment, and writs of seizure and sale obtained by the plaintiff without notice while counsel were actively corresponding.

The court found the default judgment was improperly obtained through "sharp practice" and lack of notice, setting it aside without an inquiry into the merits of the defence.

The Master's order was also set aside under Rule 37.14(1)(b) due to counsel's inadvertence, emphasizing a contextual approach to prevent a miscarriage of justice.

The court imposed strict terms for the defendants to regularize their file and awarded $15,000 in costs to the defendants, payable by the plaintiff, largely due to the plaintiff's counsel's unacceptable conduct.

Certain respondents to an application brought a motion to vacate a Certificate of Pending Litigation registered against a property following a power of sale transaction.

The moving parties argued the applicants, as subordinate mortgagees, had no reasonable claim to an interest in land and that their remedy, if any wrongdoing occurred in the power of sale process, was in damages or an accounting.

The court applied the analytical framework for CPLs, including the requirement of a reasonable claim to an interest in land and the equitable considerations described in Dhunna.

The court concluded the allegations relating to an allegedly defective notice of sale, premature closing, or improper conduct in the sale process did not support a proprietary remedy.

Finding that damages were the appropriate remedy and that the prejudice of maintaining the CPL outweighed any prejudice to the applicants, the court ordered that the CPL be vacated.