Kelly L. Webster

In an addendum to an appeal decision released on January 8, 2010, the Court of Appeal for Ontario fixed the costs of the dismissed appeal.

The respondent was awarded costs fixed in the sum of $40,000, inclusive of disbursements and GST.

The cross-appeal was dismissed without costs.

The appellants, limited partners in a condominium complex, appealed a trial judgment dismissing their claims for negligent misrepresentation and breach of fiduciary duty against the respondent lender, and rejecting their defences to the respondent's shortfall action following power of sale proceedings.

The appellants argued that the respondent failed to inform them of property tax arrears when renewing the mortgage.

The Court of Appeal dismissed the appeal, finding that the respondent's relationship was solely with the general partner, and it owed no duty of care or fiduciary duty to communicate directly with the limited partners.

The appellant appealed an order staying its action for an accounting against a mortgagee.

The Court of Appeal dismissed the appeal, finding that the motion judge properly exercised her discretion to stay the proceeding as a redundancy, since the appellant's allegations of wilful default could be pursued in the ongoing deficiency action.

The appellants appealed an order striking their statement of claim against the respondent municipality.

The appellants argued the motion judge should have considered their motion to amend the statement of claim before striking it.

The Court of Appeal agreed but found the motion to amend would have failed due to inordinate, unexplained delay and prejudice to the respondent, including the expiry of limitation periods.

The unamended statement of claim disclosed no cause of action against the respondent.

The appeal was dismissed.