Natasha Kelly Carew

The appellant appealed an order of the Superior Court of Justice dismissing her action under Rule 2.1.01.

The motion judge found that the action met the test for dismissal on its face.

The appellant argued that the respondent, having been noted in default, was precluded from taking further steps without leave.

The Court of Appeal upheld the dismissal, finding that even if leave was required, it would have been granted as this was a clear case for application of Rule 2.1.01.

The appeal was dismissed with no costs.

The defendant, Mark Stephen Kent, moved to dismiss the plaintiff's action for failure to comply with a prior costs order of McEwen J. totaling $35,403.80 and for delayed prosecution of the action.

The plaintiff, Clifford Todd Monaghan, had not paid the costs and offered an explanation of waiting for a Small Claims Court judgment.

The court found clear failure to comply with the order and inordinate, inexcusable delay, giving rise to a presumption of prejudice.

While dismissal was justified, the court opted for a stay of the action, conditional on the plaintiff paying the outstanding costs within two months.

If not paid, the defendant could move in writing for dismissal.

Costs of the current motion were fixed at $10,000 on a substantial indemnity basis against the plaintiff.

This is a costs endorsement following the dismissal of the defendants' motion for summary judgment.

The plaintiffs, as the successful parties, sought costs on a partial indemnity scale.

The defendants argued their motion was reasonably brought and narrowed issues, and that the requested costs were excessive.

The court awarded costs to the plaintiffs, fixing fees at $41,049 and disbursements at $792.40, totaling $47,280.78 including HST, to be paid within 30 days.

The court applied a 60% partial indemnity rate, considering the significance and complexity of the underlying motion.

The applicant, Claude Bitton, brought an action for breach of contract and an application for an oppression remedy against Alain Checroune, A. Checroune Realty Corporation, and 500 Sheppard Avenue West Ltd. The parties had intended to jointly develop a condominium property.

The court found that a binding agreement existed regarding the assumption of a mortgage, registration of new mortgages, and share transfer, but no enforceable agreement on development funding or management.

The court concluded that Checroune and A. Checroune Realty engaged in oppressive conduct by failing to discharge the CMLS mortgage, improperly registering a second mortgage, and failing to fund half of the corporation's ongoing expenses.

However, the court found no damages caused by Checroune's conduct, attributing project stagnation to Bitton's inaction.

The court ordered the invalidation of a Notice of Sale, discharge of the CMLS mortgage, partial discharge of Bitton's mortgage, and the sale of A. Checroune Realty's shares in 500 Sheppard Avenue West Ltd. to Bitton, with further submissions required for valuation.

The defendants moved for summary judgment to dismiss the plaintiffs' action concerning a share purchase agreement for a commercial property.

The core issue was whether the defendant vendor used "best efforts" to satisfy a condition precedent requiring all litigation affecting the property to be resolved by the closing date.

The plaintiffs sought specific performance, arguing the condition was not met due to the defendant's breach.

The court found a genuine issue requiring a trial regarding the defendant's best efforts, dismissing the summary judgment motion.

The court also declined to discharge the plaintiffs' certificate of pending litigation or set aside an interlocutory injunction, and refused partial summary judgment on the defendants' counterclaim for unpaid rent due to intertwined factual issues.