O. Hoque

Following an application where the applicant successfully obtained a declaration that an agreement of purchase and sale was terminated by the respondents' breach, the parties could not agree on costs.

The applicant sought over $26,000 on a substantial indemnity basis, relying on a Rule 49 offer.

The court declined to apply Rule 49.10 consequences because the applicant was not wholly successful, as damages and deposit forfeiture remained to be determined at a summary hearing.

Applying the principles of fairness, reasonableness, and proportionality, the court awarded the applicant $15,000 in costs on a partial indemnity basis.

The applicant vendor sought a declaration that the respondent purchasers repudiated an agreement of purchase and sale for a new home, and that the vendor was entitled to resell the property.

The purchasers brought a counter-application seeking specific performance or damages, alleging the vendor breached the agreement by unilaterally setting closing dates contrary to the Tarion Addendum.

The court found that the vendor properly extended the closing dates due to unavoidable delays caused by the COVID-19 pandemic, in compliance with the Tarion Addendum.

The purchasers failed to close on the agreed date, entitling the vendor to terminate the agreement.

The court granted the vendor's application to remarket the property and dismissed the purchasers' counter-application, adjourning the issue of deposit forfeiture to a summary hearing on damages.

This endorsement addresses issues arising from the withdrawal of the applicant's counsel, Mr. Singha, following serious allegations by the respondent that counsel was aware of an alleged false marriage involving the applicant.

The court accepted counsel's categorical denial, noting his honourable decision to withdraw from the litigation.

The judge concluded that further inquiry into the allegations against counsel would be unproductive and costly, and closed the matter.

Directions were provided for the orderly transfer of the file to new counsel.

The defendant brought a motion to set aside a noting in default and default judgment obtained by the plaintiff in a breach of contract action.

The plaintiff had taken active steps to obtain the default judgment without notice to the defendant, despite being contacted by the defendant's counsel who requested consent to file a statement of defence.

Applying the five-factor test from Intact Insurance Co. v. Kisel, the court found that the defendant moved promptly, had an arguable defence on the merits, and that the plaintiff's conduct in obtaining the judgment was evasive.

The court granted the motion, setting aside the noting in default, the default judgment, and the associated writ of seizure and sale.