Scott Martin

The moving parties sought relief from automatic striking of their Statement of Defence and Counterclaim after delivering a response for particulars two days late under a prior consent order.

The responding party opposed and pursued default judgment based on strict non-compliance.

Applying Rules 3.02 and 1.04, and guided by appellate authority on extensions and merits-based adjudication, the court granted a retroactive extension and reinstated the pleading.

The court characterized the breach as minor, found no prejudice to the responding party, and held the interests of justice favoured determination on the merits.

No costs were awarded.

This endorsement concerns the costs of a successful Rule 21 motion brought by the defendants.

The court applied the principles of costs awards, including the factors under Rule 57.01 of the Rules of Civil Procedure, to determine fair and reasonable partial indemnity costs.

The defendants were wholly successful on the underlying motion, and their requested costs were found to be proportionate and within the parties' expectations.

The court awarded specific partial indemnity amounts to each successful defendant, payable by the plaintiff.

The defendant lawyers, Kubeskran Navaratnam, Marilyn Reiter-Nemetz, and Ronald Lachmansingh, brought a motion to dismiss the plaintiff's claim against them under Rule 21.01(1)(b).

The plaintiff, 9383859 Canada Ltd., alleged negligence and false statements against the lawyers who represented adverse parties in a failed real estate transaction and subsequent litigation.

The court found that lawyers generally owe no duty of care to opposing parties, especially when the opposing party is represented by their own counsel.

The court also held that statements made in pleadings are protected by absolute immunity and that the claims were statute-barred.

Consequently, the motion was granted, and the claims against the defendant lawyers were struck without leave to amend, as they were deemed radically defective, frivolous, vexatious, and an abuse of process.