Michael Courneyea

Following a decision granting summary judgment, the court issued a supplementary endorsement to address correspondence from the parties regarding costs.

The court had previously corrected two inadvertent errors in its costs awards at the request of the defendants.

The plaintiff's counsel subsequently emailed the court requesting that the costs orders be held in abeyance to allow for further written submissions, alleging sharp practice by opposing counsel.

The court declined the request, noting that all parties had previously agreed to the court determining costs based on the uploaded outlines without further submissions.

The court held that it was inappropriate to request a change to the costs decision or to make allegations of professional misconduct via email to the court.

The moving parties, a car rental company and its lessee, sought partial summary judgment dismissing the plaintiff's motor vehicle accident claims against them.

The plaintiff's vehicle was struck by the rental car, which was driven by the lessee's partner without express consent.

The court found that partial summary judgment was appropriate to determine the issue of consent.

Applying the objective test for implied consent, the court concluded that the driver would not have been justified in deeming she had implied consent to possess the vehicle, given she had never taken it before, only had a G1 license, and the lessee had no reason to suspect she would take it.

The motions were granted and the claims against the moving parties were dismissed.

The plaintiff sought an order for the examination for discovery of a deaf defendant, residing in London, England, to take place by video conference with a sign language interpreter.

The defendants proposed written questions or an oral examination in London.

The court granted the plaintiff's request, emphasizing the importance of oral discovery for credibility assessment, cost-effectiveness of video conferencing, and the need for video recording of interpreted testimony to ensure accuracy.

The plaintiff's separate request for costs related to a prior certificate of non-attendance was denied due to improper scheduling and non-compliance with discovery rules.

At a status hearing under Rule 48.14(13) of the Rules of Civil Procedure, the plaintiff was required to show cause why its action should not be dismissed for delay.

The court held that the plaintiff bore the onus of demonstrating both an acceptable explanation for litigation delay and that the defendants would suffer no non-compensable prejudice if the action proceeded.

The plaintiff filed only a brief affidavit that failed to explain extended periods of inactivity and provided no evidence addressing prejudice.

Evidence from the remaining defendants established that key witnesses could no longer be located, creating significant litigation prejudice.

The court concluded the plaintiff failed to meet either branch of the test and dismissed the action for delay with costs.

Following a seven‑day trial involving enforcement of a vendor‑take‑back mortgage, promissory note, and guarantees relating to the sale of a gasoline station, the successful lender sought costs on a full indemnity basis relying on contractual provisions and alternatively substantial indemnity costs after an offer to settle.

The defendants conceded that costs should be awarded but disputed the scale and quantum.

The court held that although the plaintiff was largely successful, the defendants achieved limited success on an issue that reduced the principal judgment by $80,000.

The court further held that the plaintiff’s offer to settle was an “escalating offer” that did not trigger Rule 49.10 cost consequences.

Partial indemnity costs were awarded and fixed globally in an amount reflecting the mixed success of the parties.

The plaintiff sold a gasoline station to the defendants and took back a VTB mortgage and a promissory note.

The defendants stopped making payments, alleging the plaintiff misrepresented the station's financial performance and failed to complete a drive-through as undertaken.

The court found no misrepresentation, as the financial information provided was not materially inaccurate and the defendants waived their due diligence conditions.

However, the court found the plaintiff breached its undertaking to complete the drive-through and awarded the defendants an $80,000 offset against the amounts owing under the VTB mortgage.

The plaintiff was granted judgment for the balance owing and possession of the property.