R. Aisenberg

The plaintiff, CIBC, brought a motion for partial summary judgment on a debt claim of $856,602.80 arising from margin calls on an online trading account, and to dismiss the defendants' counterclaim.

The defendants argued they had placed stop loss orders that CIBC failed to execute.

CIBC also had a separate claim for fraudulent conveyance against the defendants, which was not part of the summary judgment motion.

The court dismissed the motion, finding a genuine issue requiring a trial regarding the stop loss orders and a real risk of inconsistent findings of fact if the debt claim was severed from the fraudulent conveyance claim.

The defendants brought a motion to set aside a default judgment obtained by the plaintiff.

The court applied the five-part test for setting aside a default judgment, finding that the motion was brought promptly, the failure to file a defence was adequately explained, and the defendants demonstrated an arguable case on the merits based on a draft Statement of Defence and Third Party Claim.

The court concluded that the plaintiff would not suffer prejudice that could not be compensated by costs.

The motion was granted, the default judgment was set aside, and the defendants were awarded costs of $3,000.

Following a summary judgment granting the plaintiff lender judgment and dismissing the defendant borrower’s counterclaim alleging fraud, the court addressed costs.

The plaintiff sought substantial indemnity costs based on contractual mortgage provisions and unfounded allegations of fraud made in the defence.

Applying Rule 57.01 of the Rules of Civil Procedure and authorities regarding allegations of fraud, the court held that unproven accusations of fraud justified costs on a substantial indemnity scale.

However, the court reduced the hours claimed as excessive given the simplicity of the matter.

Total costs of $18,450.66 inclusive of HST and disbursements were awarded.