4 total
Default judgment granted for property misrepresentation and concealed defects.
The plaintiffs brought a motion for default judgment after the defendants’ statement of defence was struck and the defendants were noted in default.
The action arose from the purchase of a farm property where the plaintiffs alleged negligent misrepresentation, active concealment of defects, and breach of contract relating to deficiencies including septic failure, mold, unsafe well water, infertile soil, and misrepresented acreage.
Under Rule 25.07(2) of the Rules of Civil Procedure, the defendants were deemed to admit the facts pleaded, leaving damages as the remaining issue.
Based on affidavit evidence, the court assessed damages for loss of property value, remediation expenses, labour, and loss of use and enjoyment.
Aggravated damages were refused, and judgment was granted with costs.
Substantial indemnity costs awarded after plaintiff refused to honour accepted settlement.
Following a prior decision granting the defendants’ motion to enforce a settlement agreement, the court considered costs.
The defendants sought substantial indemnity costs from the date the settlement was accepted, arguing the subsequent litigation resulted solely from the plaintiff’s refusal to honour the settlement.
The court applied s.131 of the Courts of Justice Act and rr. 49.10 and 57.01 of the Rules of Civil Procedure.
Substantial indemnity costs were found appropriate, though the court reduced counsel’s hourly rate and excluded time relating to proceedings where no costs had been awarded.
Costs were fixed at $15,960.63 payable by the plaintiff.
Motion to enforce settlement granted; objective reading of correspondence confirmed agreement to discharge mortgages.
The defendants brought a motion under Rule 49.09 to enforce a settlement agreement allegedly reached via correspondence between counsel.
The plaintiff argued that while it agreed to dismiss the action, it never agreed to discharge the mortgages on the commercial properties it had sold to the defendants.
The court found that, viewed objectively, the plaintiff's offer to dismiss the action reasonably included giving up its mortgage remedies, and the defendants' acceptance created a binding contract.
The court exercised its discretion to enforce the settlement, noting that allowing the litigation to continue would prejudice the defendants due to significant delay and lost evidence.
The action and counterclaim were dismissed, and the mortgages ordered discharged.
Insurer's eve-of-hearing motion to compel section 42 assessments and adjourn arbitration dismissed.
The insurer brought a motion for an order compelling the applicant to attend further psychological and orthopaedic assessments under section 42 of the Statutory Accident Benefits Schedule, and for an adjournment of the upcoming arbitration hearing.
The arbitrator dismissed the motion, finding it to be an exercise in tactical brinkmanship on the eve of the hearing.
The insurer failed to provide a reasonable explanation for its delay in requesting the assessments, despite having early notice of the psychological and orthopaedic components of the claim.
Furthermore, the arbitrator noted a lack of jurisdiction to directly compel attendance at a section 42 examination.
