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Costs denied where success on motion partly resulted from applicant’s pleading deficiency.
Following dismissal of a summary judgment motion that sought to bar an unjust enrichment claim on limitation grounds, the applicant requested costs based on her success.
The court held that although the motion had been dismissed, the outcome resulted partly from the applicant’s own failure to amend her pleadings to properly include the unjust enrichment claim after obtaining leave to do so.
The respondent had also failed to plead the limitation issue, contributing to the motion’s failure.
In the circumstances, the court determined that awarding costs to the applicant would improperly reward her pleading deficiency.
The request for costs was therefore dismissed and no costs were awarded to either party.
Appeal allowed in part; action against one appellant dismissed and damages reduced to prevent double recovery.
The appellants appealed a trial judgment regarding a real estate transaction involving misrepresentations.
The Court of Appeal allowed the appeal in part, finding no evidentiary basis to hold Mona Dreiser liable for the misrepresentations and dismissing the action against her.
The Court also found the trial judge's damages award amounted to double recovery, as the respondent had already received clear title through the discharge of a vendor-take-back mortgage.
Damages were varied to $3,500, representing the difference between the amount paid and the actual market value.
