Robert M. Isles

Following a successful motion for summary judgment dismissing the defendants' counterclaim, the plaintiff sought costs on a substantial indemnity basis.

The court found the defendants' conduct to be egregious, noting they unnecessarily lengthened the proceedings by incorporating voluminous irrelevant material and re-litigating previously decided issues.

The court awarded the plaintiff substantial indemnity costs of $23,147.35 against the personal and corporate defendants.

Claims for costs against a non-party and opposing counsel personally were dismissed.

Corporate defendants moved under Rule 19.03 of the Rules of Civil Procedure to set aside a noting of default and obtain leave to deliver a statement of defence in an action for unpaid accounting services.

The court considered the discretionary factors governing relief from default, including the explanation for the failure to defend, the promptness of the motion, and potential prejudice.

The evidence showed the corporate defendants did not have actual knowledge of the action due to issues with service and acted promptly once the claim came to their attention.

The court found a plausible explanation for the delay and no prejudice to the plaintiff.

In the interests of justice, the noting of default was set aside and the defendants were granted time to deliver their defence.

The plaintiff moved for summary judgment to enforce a second mortgage and obtain payment of funds paid into court following a power of sale.

The defendants alleged the mortgage had been fully paid through a combination of cheque and cash payments, relying primarily on internal payment spreadsheets and hearsay evidence from a bookkeeper.

The court held that the defendants failed to provide reliable proof of payment and that their evidence consisted largely of unsupported assertions.

Applying the summary judgment framework following Hryniak v. Mauldin, the court concluded there was no genuine issue requiring a trial.

Judgment was granted for the outstanding mortgage balance with interest and the plaintiff was declared entitled to surplus sale proceeds subject to set-offs.