R. Grad

The defendants brought a motion to set aside a noting in default against them in a construction lien action and sought leave to file a Statement of Defence and Counterclaim.

The plaintiff had noted them in default without prior notice, despite ongoing communications between counsel.

The court granted the defendants' motion, finding they met the two-part test for setting aside default by acting promptly and providing evidence of a good defence.

The court also noted that the plaintiff's counsel's conduct, in failing to notify of the default, offended principles of advocacy and civility.

The plaintiffs were unsuccessful in their summary judgment motion.

The defendant, as the successful party on that motion, sought substantial or partial indemnity costs.

The plaintiffs argued that costs should be reserved to the trial judge, citing that the merits were not yet adjudicated, work product would be used at trial, credibility issues remained, and they still had a reasonable chance to prevail.

The court, exercising its discretion under the Courts of Justice Act and Rules of Civil Procedure, found that the case warranted reserving costs to the cause, as the ultimate outcome depended on credibility at trial.

The defendant's request for immediate costs was dismissed, and costs were ordered in the cause.

The plaintiffs, parents of the defendant's estranged spouse, brought a motion for summary judgment seeking repayment of a $43,246.36 loan made to their son-in-law.

The loan, provided for condominium renovations, lacked formal documentation, and repayment terms were disputed.

The defendant opposed the motion, highlighting credibility issues in the affidavits and the linkage to ongoing family law proceedings where his spouse had agreed to assume part of the debt.

The court dismissed the motion, finding significant conflicting evidence and credibility issues that required cross-examination, which is not permitted under Simplified Procedure Rules for affidavits, making a summary judgment inappropriate.