Yusuf Barre

Following the dismissal of a civil action, the successful defendants sought an award of costs.

The court considered the applicable factors under Rule 57.01(1) of the Rules of Civil Procedure, including the reasonableness of the amounts claimed and the principle of proportionality.

The court determined that the defendants were wholly successful in defending the action and were therefore entitled to recover their legal costs.

Costs were awarded on a lump-sum basis inclusive of fees, disbursements, and HST.

The plaintiffs sued after purchasing commercial premises intended for use as an auto body shop, alleging the defendants breached the agreement of purchase and sale by selling property unsuitable for that use, including a non-compliant spray booth, and by commencing wrongful mortgage litigation.

The court held the agreement was for the sale of property, not a business, expressly disclaimed representations or warranties regarding the lawfulness of future use, and placed inspections and environmental compliance inquiries on the buyers, who waived those conditions.

The court also found the mortgage enforcement proceedings were not wrongful, as the plaintiffs were in default and the defendants ultimately obtained judgment on the vendor take-back mortgages.

The plaintiffs failed to prove any damages with documentation or reliable evidence.

The action was dismissed.

The Court of Appeal for Ontario issued a costs endorsement following a motion to review an order dismissing a motion as abandoned.

Costs were fixed at $3,000 all inclusive in favour of the respondents.

The moving parties sought a review of an order dismissing their motion as abandoned, claiming it had been adjourned and should not have been on the list.

The Court of Appeal found that regardless of what happened on the return date, the underlying motion lacked merit because a previous request for an extension of time to appeal had already been denied, there was no appeal pending, and the properties had already been sold.

The motion was dismissed.

The moving parties sought leave to appeal, an extension of time to appeal, and a stay of enforcement of a writ of possession arising from a mortgage default judgment and a Master's reference report.

The Court of Appeal dismissed the motion, finding that the moving parties had not pursued their right to oppose confirmation of the Master's report in the Superior Court, meaning there was no appeal properly before the Court of Appeal.

The court also declined to stay the writ of possession, noting the substantial admitted default and the lack of evidence regarding the moving parties' ability to pay.