Plaintiffs did not succeed on most important issue

Plaintiffs brought motion for summary judgment for relief relating to interment rights, and for damages for breach of contract. Claim for order directing defendants to issue interment rights certificate was settled. Plaintiffs were granted summary judgment on breach of contract issue. Before court was functus officio, motion for summary judgment was continued and, on expanded evidentiary record, motion was dismissed in respect of breach of contract. Plaintiffs were to pay costs of $30,000. In support of plaintiffs’ claim that they were entitled to costs, they submitted that certificate was always necessary to complete reinterment of remains of their father and that it was reasonable for them to first take steps to obtain certificate. Submission conflicted with finding that plaintiffs would have been in same position with respect to process for obtaining order for disinterment and completing arrangements for disinterment and reinterment as they would have been if there had been no breach of contract. Because of conclusion that delivery of certificate was not needed by plaintiffs to make necessary arrangements, plaintiffs did not succeed on most important issue, whether there was any prejudice to them caused by failure of defendant congregation to deliver certificate in timely way.

Tsekhman v. Spero (2018), 2018 CarswellOnt 2090, 2018 ONSC 1053, Cavanagh J. (Ont. S.C.J.); additional reasons (2017), 2017 CarswellOnt 3819, 2017 ONSC 1718, P.J. Cavanagh J. (Ont. S.C.J.). (Ont. S.C.J.); additional reasons (2017), 2017 CarswellOnt 19394, 2017 ONSC 7326, Cavanagh J. (Ont. S.C.J.).