Mackenzie Laforet

The appellant appealed the dismissal of his motion to set aside a default judgment obtained by the respondent credit card company for unpaid charges.

The motion judge applied the Mountain View factors and found that all but one weighed against the appellant, including a lengthy unexplained delay in bringing the motion and a lack of plausible excuse for the default.

While the motion judge accepted the appellant's proposed defence had an air of reality, she found it weak and insufficient to overcome the other factors.

The Court of Appeal found no basis for appellate interference, holding the motion judge properly exercised her discretion in weighing the factors holistically.

This standalone costs decision followed reasons continuing an interim injunction and certificate of pending litigation until trial.

The successful moving parties sought partial indemnity costs and disbursements, while the responding parties argued costs should be in the cause or reduced.

Applying the ordinary rule that costs follow the result and the discretion applicable to interlocutory injunction proceedings, the court fixed costs itself rather than reserving all costs to trial.

The court found the moving parties were largely successful and awarded reduced partial indemnity costs plus limited disbursements, while reserving transcript-cost issues to the trial judge.

The plaintiff, John Shane, sought damages from Ontario Aboriginal Housing Support Services Corporation (OAHS) for property damage caused by a fire in a rental unit leased to OAHS clients.

Shane claimed OAHS had orally agreed to cover all property damage caused by its clients, or, in the alternative, that OAHS was negligent in supporting the tenants.

The court found no oral contract existed, as there was no meeting of the minds or clear promise by OAHS to cover all damages.

The court also found no evidence of negligence by OAHS.

The claim was dismissed.