Michael Aaron Winterstein

The plaintiff trustee sued the defendant appraisers for negligent misrepresentation regarding a property valuation that allegedly caused losses to 13 mortgage investors.

The defendants moved to examine the 13 individual investors for discovery and to amend their statement of defence and counterclaim.

The court granted the request to examine the investors, finding their individual reliance on the appraisal was relevant, but limited each examination to one hour to ensure proportionality.

The court also permitted the amendments to the pleadings, save for certain allegations regarding the trustee's general mortgage practices and undisclosed conflicts of interest, which were struck as irrelevant and lacking particulars.

Following a motion concerning whether to set aside a default judgment or reduce an interest rate, the court had awarded costs to the plaintiff.

After judgment, the defendants argued that a prior Rule 49 offer to settle matched the result and therefore disentitled the plaintiff to costs while entitling the defendants to their costs of the motion.

The court held that the cost consequences regime under Rule 49.10 does not apply to motions to set aside default judgments in the same manner as trial judgments.

The defendants therefore could not rely on the offer to alter the costs determination.

The previously ordered costs award in favour of the plaintiff was confirmed.

The plaintiffs brought a motion under Rule 37.14 of the Rules of Civil Procedure to set aside a registrar’s order dismissing their action for delay after they failed to set the action down for trial by the deadline imposed in a status hearing timetable order.

The court applied the contextual approach and the Reid factors governing motions to set aside registrar dismissals, including explanation for litigation delay, inadvertence in missing the deadline, promptness of the motion, and prejudice to the defendants.

The court found the missed deadline resulted from counsel’s inadvertence, the motion was brought promptly, and the plaintiffs had provided satisfactory explanations for brief periods of delay.

Although the limitation period had expired, the plaintiffs rebutted the presumption of prejudice and the defendants failed to demonstrate significant actual prejudice.

The registrar’s dismissal order was therefore set aside and a new timetable imposed.

Following multiple prior orders in a corporate dispute between business partners, the successful party sought costs on a full indemnity basis due to the opposing party’s repeated non‑compliance with court orders and obstructive conduct.

The court reviewed the governing factors under Rule 57.01 of the Rules of Civil Procedure and the jurisprudence on when full indemnity costs are appropriate.

Although the respondent’s conduct caused delay and required numerous court appearances, the court found it did not rise to the egregious level required for full indemnity costs such as fraud or deception of the court.

Considering the respondent’s non‑compliance and litigation conduct, the court awarded costs on a substantial indemnity basis.

Costs were fixed at $20,431.14.