Rabah Yaacoub Moubarak

The defendant, Rock Con Forming Ltd., moved to set aside a noting in default, a default judgment, and a notice of garnishment, and sought leave to file a statement of defence and crossclaim.

The action arose from a construction project where Quadform Ltd. claimed non-payment for services.

Rock Con argued it was never properly served with the statement of claim and had a meritorious 'pay when paid' defence.

The court found that while Rock Con likely had notice of the action, Quadform failed in its duty of full and fair disclosure by not checking Canada Post tracking history for registered mail service when seeking default judgment ex parte.

Given Quadform had already received payment from a co-defendant, the court granted Rock Con's motion, setting aside the default judgment and garnishment, and allowing it to file a defence, but made no order as to costs due to both parties' conduct.

Following three motions in which the plaintiff was entirely successful, the court determined the appropriate quantum of costs payable by the defendants.

The court emphasized the principle of indemnity and the broader purposes of costs awards, including encouraging settlement and discouraging unnecessary litigation steps.

One defendant failed to comply with Rule 57.01(6) of the Rules of Civil Procedure by not delivering a Form 57B cost outline, which limited the court’s ability to assess proportionality and undermined the defendant’s objections to the plaintiff’s claimed costs.

The court found the plaintiff’s preparation and allocation of legal work reasonable given the complexity and importance of the motions.

Costs were fixed at $8,000 inclusive of disbursements and HST, payable jointly and severally by the defendants.

The plaintiff creditor brought a motion for a certificate of pending litigation over a matrimonial home transferred from the debtor husband to his wife after the plaintiff had commenced a construction lien trust action.

Following a later judgment against the debtor and unsuccessful collection efforts, the plaintiff commenced a fraudulent conveyance action seeking to set aside the transfer.

The court held that under s.103 of the Courts of Justice Act and Rule 42.01, a certificate of pending litigation may issue where there is a reasonable claim to an interest in land pending trial.

Given the timing of the transfer, the nominal consideration, and the existence of a judgment debt, the plaintiff established a sufficient interest in the property to justify preservation of the asset.

The certificate of pending litigation was ordered to issue, with costs to the plaintiff.