Ryan Zener

Endura Manufacturing Company Ltd. (Endura) brought a motion to set aside service of a claim ex juris and stay an action initiated by Benefact Consulting Group Inc. (Benefact) in Ontario.

Endura argued that a forum selection clause in their contract, which designated Ontario courts, was unconscionable or obtained through unfair tactics, and that Ontario lacked a real and substantial connection to the dispute or was *forum non conveniens*.

The court found the forum selection clause to be valid and binding, rejecting Endura's claims of unconscionability or improper inducement.

Consequently, the court upheld Ontario's jurisdiction based on the clause, dismissing Endura's motion.

Following a motion in which the defendant successfully set aside a default judgment and obtained leave to file a statement of defence, the court determined the appropriate costs order.

The successful moving party sought costs of the motion, while the plaintiff sought higher costs relating both to the motion and the earlier default hearing.

The court found both counsel’s time and rates reasonable but rejected the plaintiff’s attempt to recover costs for earlier proceedings of which the defendant had no knowledge.

Considering the relevant factors, the court fixed costs in favour of the successful moving party, payable only if it ultimately succeeded at trial.

The defendant brought a motion to set aside a default judgment and writ of seizure and sale arising from a breach of contract claim related to services for preparing SR&ED tax credit documentation.

Applying the test articulated by the Court of Appeal, the court considered promptness of the motion, explanation for the default, existence of an arguable defence, potential prejudice, and the integrity of the administration of justice.

Although the court expressed doubts about the credibility of the defendant’s evidence regarding service and the factual basis of the defence, it accepted that the motion was brought promptly and that there was a plausible explanation for the failure to defend.

The court also found that the defendant had an arguable defence on the merits concerning whether it qualified for SR&ED credits and whether the contract had been terminated.

Balancing the relevant factors, the court concluded that the interests of justice favoured setting aside the default judgment.

An uncontested civil trial assessed damages for breach of a contingency-fee contract related to the preparation of scientific research and experimental development (SR & ED) tax credit claims.

The defendant corporation failed to cooperate with the plaintiff consultant and was noted in default.

The court accepted evidence that the plaintiff would likely have secured tax credits for the 2011 fiscal period and awarded damages representing the lost contingency fee.

However, the court declined to award damages for the 2012 and 2013 fiscal periods because there was no evidence of qualifying projects or likely tax credits, rendering such claims speculative.

Judgment was granted for the calculated lost fee for 2011 plus interest and costs.