S. Siddiqui

The moving party defendants, a real estate agent and his brokerage, brought a motion for summary judgment to dismiss a crossclaim by the responding party defendants, the purchasers in a failed real estate transaction.

The moving parties argued the crossclaim was barred by a full and final release signed by the purchasers in exchange for the return of their deposit.

The purchasers argued the defence of non est factum, claiming they did not understand the document due to language barriers and misrepresentation.

The court granted summary judgment, finding the release extended to the brokerage and that non est factum did not apply because the purchasers were careless in signing the document without reading it or seeking translation, and there was no misrepresentation.

The defendants brought a motion for a declaration that the plaintiff's construction lien had expired pursuant to s. 37(1) of the Construction Act, and for the return of security paid into court.

The court found that the lien had clearly expired because the plaintiff failed to set the action down for trial within two years.

The court declared the lien expired and ordered the return of the security.

However, the court declined to dismiss the underlying action for quantum meruit, holding that the expiration of the lien does not extinguish the underlying cause of action.

The defendant brought a motion to dismiss the plaintiff's claim for delay, citing the plaintiff's failure to answer undertakings which required four prior motions to compel.

The court noted that dismissing an action for delay is a severe remedy.

Because the plaintiff had finally answered all undertakings, paid the costs of the prior motions, and passed the Trial Record, the court declined to dismiss the claim.

However, because the motion was necessary to force the plaintiff to advance the matter, the court awarded costs of the motion to the unsuccessful defendant in the amount of $2,000.

The plaintiff's action was administratively dismissed for delay under Rule 48.14 after failing to set the action down for trial.

The plaintiff brought a motion to set aside the registrar's dismissal order.

The court applied the Reid factors and a contextual approach, finding that the delay was adequately explained, resulted from counsel's inadvertence, and that the defendants would not suffer non-compensable prejudice.

The motion was granted and the dismissal order was set aside.