Trent Morris

The appellant real estate agent sued the respondent vendor for unpaid commission and brought a motion under Rule 45.02 to have the proceeds of the sale, held in trust by the vendor's solicitor, paid into court pending trial.

The master granted the motion, but the Divisional Court allowed the appeal.

The Court of Appeal dismissed the appellant's appeal, clarifying that while Rule 45.02 does not require a plaintiff to claim a proprietary right to a specific fund, the plaintiff must claim a legal right to the fund.

Because the appellant's claim was for damages for breach of contract rather than a legal right to the specific trust funds, the test for payment into court was not met.

The appellant appealed a Master's procedural order concerning late delivery of an affidavit of documents and related case management directions, including a substantial indemnity costs award and dispensing with approval of the draft order.

The court emphasized the high level of appellate deference owed to discretionary procedural decisions made by Masters.

It held that brief endorsements can suffice as reasons in procedural case management contexts and that no palpable and overriding error had been demonstrated.

The appellant had not sought leave to appeal the level of costs under the Courts of Justice Act.

The appeal was therefore dismissed.

The appellants appealed a partial summary judgment granted on a $400,000 promissory note given to the respondent vendor on the closing of a real estate transaction.

The appellants sought to set-off claims against the note, but the motion judge only permitted two conceded claims to go to trial and granted summary judgment for the balance.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's conclusion that there were no genuine issues for trial regarding the other set-off claims, nor in his decision not to stay enforcement of the judgment pending the trial of the counterclaims.