The defendants moved for an order compelling the plaintiff to pay a $40,000 costs award, which was granted following a successful summary judgment motion, and to strike the plaintiff's defence to counterclaim if payment was not made.
They also sought to stay the plaintiff's pending summary judgment motion against their counterclaim.
The court lacked jurisdiction to stay the plaintiff's summary judgment motion.
The primary issue was whether the costs award was automatically stayed under Rule 63.01(1) of the Rules of Civil Procedure, given a pending appeal of the underlying summary judgment on the merits.
The court found the costs award inextricably connected to the judgment under appeal and thus captured by the automatic stay.
Alternatively, the court found the costs award stayed by the plaintiff's motion for leave to appeal costs in the Court of Appeal.
The defendants' motion was dismissed.