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The Ontario Court of Appeal dismissed an appeal in a loan default and guarantee case, upholding summary judgment for the bank and awarding costs of $7,500.
The applicant failed to demonstrate that Justice Edelmann committed an error of law, principle, or misconceived the facts in applying the Davies factors; given the conceded tardiness of the applicant's intention to appeal, lack of notice to respondents, neutral prejudice, and that the underlying claim had been struck as meritless, it was not in the interests of justice to extend the time to appeal, so the variation application must be dismissed.
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The Supreme Court of Canada dismissed an appeal about annulling a declaratory judgment of death, holding that lack of service was not fatal here and that return can be proved on a balance of probabilities.
The court exercised its discretion to treat Wei's appeal-proceeding evidence as a Rule 4-7 application, found on the balance of probabilities that the application materials did not come to Wei's attention, and accordingly set aside both the Strike Order and the Default Order under Rule 4-7(1) on terms (conditional relief) while granting an extension of time to appeal; the court limited the scope of the de novo appeal and refused to admit new evidence for issues that should have been raised by set-aside application but accepted and considered the Rule 4-7 material.
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The appeal is allowed and the NOCC is renewed and may be served on Dr. Abdalvand (and alternatively he is added as a defendant) because the delay was attributable to the plaintiff's lawyers, Dr. Abdalvand is a necessary party, no actual prejudice from the delay was identified beyond the presumption, renewal or joinder best serves the interests of justice, and the addition will not materially delay proceedings.
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Under Rule 4.04 a judge may grant a renewal beyond the 14 month window if the plaintiff satisfies either subsection (6)(a) or (6)(b); applying that test here the court found reasonable efforts at personal service had been made and the plaintiff would seek substituted service, inadvertence by successive counsel caused expiry, the plaintiff would suffer serious prejudice if the action terminated, and the defendants failed to demonstrate serious non-compensable prejudice, therefore a further renewal was warranted and granted for seven months.
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The Federal Court erred by treating the motion as ex parte and by failing to recognize the filed notice of motion and affidavit of service; because the decision to grant an extension is discretionary and should be made on a complete record, the proper remedy is to set aside the Federal Court's order and remit the matter for reconsideration rather than grant the extension on appeal.
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The District proved on a balance of probabilities that Dr. Este committed repeated contraventions of Building Bylaw No. 4400 (unpermitted construction, tampering with Stop Work Orders, obstructing inspectors and occupying without final occupancy approval). There were no exceptional circumstances to deny relief. Because the Demolition Order and related issues have been finally adjudicated on judicial review, the alleged new evidence does not raise a triable issue sufficient to convert the petition into an action or to reopen the prior determinations. Accordingly a permanent statutory injunctio…
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The Court held that the substitutional service order granted by the chambers judge conferred standing on the respondent to apply under R.22-1(3); the chambers judge correctly applied the three Ibrahim factors and reasonably found the respondent was not guilty of willful delay or default, so there was no palpable and overriding error of fact or legal error in setting aside the damages assessment and default judgment (the default judgment was properly set aside under R.3-8(11)).
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Ontario Court of Appeal allowed the appeal in part, set aside judgment against the corporate appellants and remitted that issue, while otherwise upholding summary judgment and dismissing the counterclaim.
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