7 total
Appeal from order striking statement of defence for failure to produce documents dismissed; costs against counsel upheld.
The appellant, Mr. Lotey, appealed an order striking out his statement of defence for failing to comply with documentary production obligations over a three-year period.
His law firm also sought leave to appeal an order requiring it to personally pay the costs of the motion.
The Court of Appeal dismissed Mr. Lotey's appeal, finding the motion judge properly exercised his discretion under Rule 30.08(2) given the deliberate and continuous failure to produce relevant documents.
The Court also denied the law firm leave to appeal the costs order, finding the firm was complicit in the flagrant disregard of the Rules and court orders.
Motion to set aside default judgment granted where moving party had arguable defence based on prior release.
The plaintiff and defendant by counterclaim brought a motion to set aside a default judgment entered against him on a counterclaim.
The original defendant had passed away before the default judgment was granted, and his widow was later appointed estate trustee nunc pro tunc.
The court found that Rule 11 did not bar the enforcement of the default judgment due to the retroactive appointment.
However, applying the test under Rule 19.08, the court set aside the default judgment and the noting in default, finding the moving party moved promptly upon realizing the judgment's consequences, provided a satisfactory explanation for the default, and had an arguable defence based on a prior release.
No costs awarded where both sides shared responsibility for the motion.
This supplementary costs decision followed a motion in which the plaintiff obtained leave to amend its statement of claim to substitute new defendants on the basis of misnomer.
Although the plaintiff was successful on the underlying motion, the court held that no costs order should be made because both sides were roughly equally responsible for the circumstances giving rise to the motion.
The court noted both the use of a non-existent entity name by the principal of the defendant side and the plaintiff lawyer's failure to conduct basic corporate or real estate searches before issuing the claim.
Misnomer correction allowed where defendant corporation never existed.
The plaintiff brought a motion for leave to amend its statement of claim to substitute two corporate defendants after discovering that the originally named defendant corporation never existed.
The proposed substitutions were sought on the basis of misnomer under Rules 5.04(2) and 26.01 of the Rules of Civil Procedure.
The court held that the circumstances constituted misnomer because the litigation was clearly directed at corporations controlled by the same principal, and a reasonable reader would understand that the claim was intended for those entities.
The court further found no non‑compensable prejudice, as the proposed defendants had knowledge of the claim and had effectively defended the action from the outset.
Leave to amend and substitute the proper corporate defendants was granted, and the substituted defendants were ordered to satisfy a prior interlocutory costs order.
Successful lender awarded reduced costs despite contractual claim for substantial indemnity.
Following the granting of summary judgment in favour of a lender in a commercial loan enforcement action, the court addressed the issue of costs.
The successful lender sought substantial indemnity costs based on contractual indemnity provisions in the mortgage, standard charge terms, and general security agreement.
The defendants argued that no costs should be awarded or that they should receive substantial indemnity costs due to alleged unfounded accusations of dishonesty and the purportedly novel nature of the dispute.
The court held that costs should follow the event and rejected the defendants’ arguments regarding misconduct and novelty.
Exercising its discretion and applying proportionality, the court awarded reduced costs rather than the full amount claimed.
Summary judgment granted to enforce demand loan based on non-financial defaults including unauthorized property transfer.
The plaintiff Bank brought a motion for summary judgment on a demand loan and for possession of a mortgaged commercial property.
Although the borrower was current on monthly payments, the Bank demanded repayment based on non-financial defaults, including the unauthorized transfer of the property to a limited partnership, late financial statements, and misrepresentations in statutory declarations.
The court granted summary judgment, finding that the loan documents clearly permitted demand at any time and that the non-financial breaches justified the Bank's decision to call the loan.
Appeal of factual findings made in a costs endorsement dismissed; res judicata application remains discretionary.
The appellant sought to overturn findings of fact made by a motion judge during a costs determination, arguing they would be prejudicial in ongoing litigation due to res judicata.
The Court of Appeal dismissed the appeal, holding that there is no free-standing right to appeal findings of fact independent of the costs award.
The Court noted that the application of res judicata and issue estoppel is discretionary, and the appellant could argue before the trial judge that they should not apply given the context of the findings.
