The appellant appealed an order dismissing its motion for summary judgment to enforce a $50,000 penalty clause under minutes of settlement.
The respondent had defaulted on the final payment due to a dishonoured cheque caused by an administrative change, and a replacement cheque had a minor shortfall, both of which were corrected promptly.
The Divisional Court upheld the motions judge's decision to exercise her discretion under Rule 49.09 to decline enforcement of the penalty clause, finding no palpable or overriding error.
