Mike Maher

The appellants sought to set aside a partial summary judgment.

The motion judge had dismissed their r. 37.14(1)(b) motion, finding their defences lacked merit.

The Court of Appeal found the motion judge erred by narrowly focusing on "non est factum" and "equitable set-off" and failing to consider the broader defence regarding the legitimacy of the promissory notes, which was raised in pleadings and affidavits.

The appeal was allowed, the order below and the partial summary judgment were set aside, and the matter was remitted to the Superior Court with specific terms for further proceedings, including document production, amended pleadings, and a potential new summary judgment motion.

The plaintiffs sought enhanced costs after successfully resisting the defendants' motion to set aside a partial summary judgment.

The defendants argued for fixed costs, citing no reprehensible conduct and potential financial hardship.

The court, applying Rule 57.01(1) factors, the contractual "reasonable sums" clause, and the proportionality principle under Rule 1.04(1.1), found the plaintiffs' claim for $15,011.88 disproportionate.

The court awarded partial indemnity costs of $5,000.00, inclusive of fees, disbursements, and HST, to be paid by the defendants within 60 days.

The plaintiffs sought partial summary judgment for monies loaned to the defendants, secured by two promissory notes and a general security agreement.

The defendants pleaded non est factum and equitable set-off but failed to file responding affidavits or appear at the motion.

The court granted partial summary judgment, finding that equitable set-off is not a valid defence to a claim on a promissory note and that the defence of non est factum was not supported by evidence.

Costs were awarded to the plaintiffs on a full indemnity scale, adjusted for double-claiming and legal education time.