3 total
Plaintiff awarded $18,500 costs after defeating delay dismissal motion.
This was a costs endorsement following the plaintiff's complete success in resisting a motion to dismiss the action for delay.
The court held the respondent plaintiff was entitled to costs on a partial indemnity scale, noting the action had been trial ready since 2019 and subsequent delay was not attributable to the plaintiff.
After reviewing the parties' bills of costs, hourly rates, and time dockets, and treating the matter as one of average complexity requiring considerable care and organization, the court fixed costs at $18,500 inclusive of disbursements and HST.
The court also remarked that the motion's costs could have been avoided had the matter proceeded to trial.
Motion to dismiss for delay denied where post-timetable delay was institutional and not plaintiff's fault.
The defendant municipality brought a motion under Rule 24.01 to dismiss the plaintiff's action for delay.
The action, concerning a municipal sewer construction project, had been set down for trial in 2019 following a consent timetable order.
Subsequent delays were due to institutional factors and a consented adjournment, not the plaintiff's conduct.
Applying the principle that only delay subsequent to a consent order requires explanation, the court found the plaintiff had complied with the timetable and dismissed the motion, ordering the matter to be placed on the trial list.
Court orders security payment to obtain mortgage discharge pending dispute over prepayment calculation.
The mortgagor brought an urgent motion under the Mortgages Act seeking an order permitting payment into court of the undisputed mortgage payout amount and additional security to cover disputed prepayment penalties in order to obtain a discharge of a commercial mortgage before the closing of a property sale.
The parties agreed on the principal, accrued interest, and a three‑month interest penalty, but disagreed on the calculation of the additional interest differential payable under the mortgage’s prepayment clause.
The court held that the contractual language regarding the calculation of the “prevailing rate” was unclear and would require evidence and full argument at a later determination.
For the purpose of security pending that determination, the court ordered payment of an additional amount sufficient to protect the mortgagee without imposing an unfair burden on the mortgagor.
Upon payment of the undisputed amount and the ordered security into trust, the mortgagee was required to provide a discharge of the mortgage and personal property security.
