Shelby Christine Morrison

The Master awarded substantial indemnity costs against the plaintiff, Long Term Recovery Limited (LTR), in favour of the defendants, David Ted Bolden and Antoinette Arian Bolden, following the defendants' successful motion to set aside default judgment.

The court found LTR's opposition to the motion to be aggressive, overly technical, and unreasonable, especially given the low threshold for setting aside default judgment and the defendants' bona fide attempts to retain counsel.

The decision emphasized promoting access to justice and deterring unreasonable interlocutory positions through higher costs awards.

The defendants brought a motion to set aside default judgment obtained by the plaintiff on a promissory note.

The court applied the Mountain View Farms test, considering promptness, plausible excuse for default, arguable defence, prejudice, and the integrity of justice.

The defendants demonstrated a plausible excuse for delay (financial difficulty in retaining counsel) and arguable defences, including undue influence/lack of independent legal advice, improvident insurance settlement affecting the note's quantum, and the plaintiff's status as an unregistered collection agency or Ontario's jurisdiction.

The court found minimal prejudice to the plaintiff, who had delayed collection for six years, and that setting aside default judgment served the interests of justice, especially given active discussions between counsel prior to default.

The motion was granted, and default judgment was set aside.

The appellant appealed a decision declaring a construction lien expired.

The appellant argued that the owner, having been noted in default under s. 54(4) of the Construction Lien Act, was not entitled to participate in the action or move for a declaration under s. 46.

The Divisional Court dismissed the appeal, holding that the general provision in s. 54(4) does not remove an owner's power to move for a declaration of an expired lien under s. 46, as the latter section allows 'any person' to bring such a motion.

In an application for related employer and sale of business declarations, the responding parties raised a preliminary issue regarding the burden of proof to establish the existence of a collective agreement.

The applicants argued that the responding parties bore the burden under sections 1(5) and 69(13) of the Labour Relations Act, 1995.

The Board held that the applicants bear the initial burden of proving the existence of the voluntary recognition agreement that created the bargaining rights upon which they rely.

The Board also made procedural directions regarding document production and scheduled further hearing dates.

The applicants, two construction trade unions, applied for certification to represent their respective trades in the industrial, commercial and institutional (ICI) sector and all other sectors of the construction industry in Board Area 3.

The parties disagreed on the appropriate bargaining unit descriptions, particularly regarding the exclusion of pre-existing bargaining rights held by the Power Workers' Union (PWU) and the applicants' own rights in the electrical power systems sector.

The Board determined that the electrical power systems sector bargaining rights should be excluded by reference to the specific collective agreements rather than the sector itself.

The Board found the Labourers' proposed bargaining unit appropriate with slight amendments, but rejected the U.A.'s proposed unit because it inappropriately sought to incorporate a jurisdictional accord that the employer had not agreed to.