M. Emery

Following a motion in which the defendant successfully obtained an order setting aside a default judgment, the court determined the appropriate costs consequences.

The default judgment had arisen after the defendant failed to attend an examination for discovery, leading to the striking of the statement of defence, a noting in default, and enforcement proceedings.

Although the court exercised its discretion under Rules 37.14, 19.03, and 19.08 of the Rules of Civil Procedure to set aside the default proceedings in the interests of adjudicating the case on its merits, it found the defendant largely responsible for the procedural failures that caused the default.

The court held that the relief granted constituted an indulgence and ordered the defendant to pay the plaintiff’s enforcement costs on a substantial indemnity basis and additional costs of the motion.

The plaintiff brought a motion to strike numerous allegations in the defendant's Statement of Defence and Counterclaim on the basis that they were frivolous, vexatious, irrelevant, or unnecessary.

The court reviewed the impugned paragraphs, which related to shareholder loans, salaries, pre-contractual negotiations, instructions given by a principal, and comments by corporate counsel.

The court struck most of the challenged paragraphs as irrelevant or unnecessary.

The court also struck the defendant's oppression claim for failing to plead the necessary elements, but granted leave to amend.

Clarke Productions brought a motion for summary judgment on its counterclaim against Category 5 Imaging Ltd. for unpaid invoices totaling $13,324.50 for subcontracted printing work.

Category 5 opposed, alleging defective work and claiming an equitable set-off based on alleged unlawful interference with economic relations.

The court found no triable issue, noting the work was completed, Category 5 was paid by its client, and there was no evidence of defective work.

The court also rejected the equitable set-off claim, finding no factual basis to meet the connectedness requirement.

The motion for summary judgment was granted.

The defendant appealed an order dismissing its motion to declare the plaintiff's construction liens expired.

The motion judge had ruled that the plaintiff's Reply and the defendant's Amended Statement of Defence were nullities, and that pleadings were closed, allowing the plaintiff to set the action down for trial within the statutory deadline.

The Divisional Court dismissed the appeal for lack of jurisdiction, finding that the motion judge's orders did not finally determine any substantive rights and were therefore interlocutory.

Under section 71(3)(b) of the Construction Lien Act, no appeal lies from an interlocutory order.