M. Stanton

The parties sought costs following a consolidated application regarding a commercial lease dispute where the applicant obtained declaratory relief terminating the lease, but monetary claims were deferred to proceed as an action.

The applicant sought partial indemnity costs of $55,361.66, while the respondents sought costs of $63,068 arguing divided success.

The court found it could not accurately apportion the applicant's costs specifically to the successful declaratory relief claim and reserved the issue of costs to the trial judge hearing the remaining damage claims.

The applicant landlord sought vacant possession and damages from the respondents, a tenant and a related corporation.

The respondents brought a cross-application for damages and determination of rights under a settlement agreement.

The court found the landlord-tenant relationship had irretrievably broken down due to the tenant's admitted failure to pay rent, which constituted a fundamental breach of the lease.

The court granted the landlord a declaration that the lease was terminated and issued a writ of possession, delayed by 30 days.

However, due to significant factual disputes, credibility issues, and the potential need for expert evidence, the court converted all remaining claims for damages from both parties into a single action to proceed with fresh pleadings and examinations for discovery.

The applicant sought an urgent mandatory interlocutory injunction requiring the respondent to remove sheds and underground hydro lines allegedly encroaching on its property and right-of-way.

The applicant argued the removal was necessary to allow heavy equipment to access and repair a berm on its wetlands.

Applying the modified test for mandatory injunctions, the court found the applicant established a strong prima facie case of trespass regarding recently constructed sheds on its property, and the balance of convenience favoured their removal.

However, the court dismissed the motion regarding older sheds and underground hydro lines, finding insufficient evidence of irreparable harm and concluding those issues required a full evidentiary record.

The defendants moved under Rule 19.08 of the Rules of Civil Procedure to set aside a default judgment and an earlier order striking their statement of defence in a property dispute involving alleged failure to disclose mould conditions in a residential basement.

The court considered the factors governing motions to set aside default judgments, including promptness of the motion, explanation for the default, and the existence of an arguable defence.

The court held that the motion had been brought without undue delay and that the defendants had an arguable defence based on sworn discovery evidence denying knowledge of mould or water problems.

Balancing prejudice to both parties and the interests of justice, the court concluded that the matter should proceed to trial on strict conditions including payment of the assessed damages and costs into court and payment of costs thrown away.

The default judgment and the order striking the defence were set aside subject to those terms.