Ron Peterson

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.

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.