Lawrence Wallach

The defendant brought a motion for leave to file a late responding affidavit to the plaintiff's summary judgment motion, after the deadline in a peremptory timetable order had passed.

The defendant also sought to cross-examine the plaintiff's affiants, which the plaintiff opposed on the basis that the defendant had not filed an affidavit.

The court granted the motion, finding that the interests of justice favoured allowing the late affidavit to ensure the case was decided on its merits.

The court also held that under Rule 39.02(1), a party is not required to serve an affidavit as a condition precedent to cross-examining an adverse party's affiant.

The plaintiff sought partial summary judgment against the defendants for a loan of $1.25 million.

The defendants argued the loan included fees that exceeded the criminal interest rate under s. 347 of the Criminal Code.

The court found that the plaintiff was entitled to partial summary judgment for the undisputed advanced funds of $1,050,000.00, as the defendants failed to provide an actuary certificate to prove the criminal interest rate for the remaining disputed amount.

The court awarded interest at 30% up to the issuance of the claim, and 2% thereafter.

Following a successful application for the partition and sale of a property, the applicant sought costs on a substantial indemnity basis due to the respondents' delay and failure to comply with prior orders.

The respondents argued the costs claimed were disproportionate and should be deferred to the reference.

The court rejected the deferral and awarded costs to the applicant on a partial indemnity basis, fixing the amount at $35,000 inclusive, noting that the respondents' misconduct had already been addressed through prior admonishments and costs orders.

An application under the Partition Act sought partition and sale of a residential property jointly owned by three registered owners, while a related application alleged that one owner held her one-third interest in trust or constructive trust for another family member who had contributed financially to the property.

The court found no evidence of an express trust and held that the claim was barred by the Statute of Frauds.

The constructive trust claim also failed because the alleged contributor’s payments were analogous to rent and did not establish unjust enrichment or a causal link warranting a proprietary remedy.

As a co-tenant, the moving party had a prima facie right to partition and sale, and the hardship of relocation did not amount to oppression sufficient to deny that right.

The court ordered partition and sale of the property with accounting issues to be determined on a reference.