The Plaintiffs sought Summary Judgment against one Defendant, Mr. MacLeod, in relation to the Plaintiff’s purchase of a home from Mr. MacLeod, and his former spouse, Mrs. MacLeod. Mrs. MacLeod was also a Defendant in the Action. As a result of non-attendance at an Examination for Discovery, Mr. MacLeod was ordered to pay the Costs of both the Plaintiffs and Mrs. MacLeod by a specified date, failing which his Statement of Defence would be struck. Mr. MacLeod failed to make the payments in the specified period, and was subsequently Noted in Default. Mr. MacLeod argued that Mrs. MacLeod, by virtue of the fact that she was also a Defendant in the Action, should bear some share of any Damages awarded to the Plaintiffs.

Graesser J. held that Rule 7.2 provides that a party can apply for Summary Judgment at any time. There is no impediment to a plaintiff seeking Summary Judgment, or an Assessment of Damages, against one Defendant, while leaving Claims against another Defendant unresolved. When one Defendant has been Noted in Default, a Plaintiff is free to proceed swiftly against the party in Default and proceed against the Defending Party at a later date (if at all). Mr. MacLeod was free to seek contribution and indemnity from Mrs. MacLeod, however, because the Defendants were jointly and severally liable to the Plaintiffs, the Plaintiffs were entitled to proceed against either or both of the Defendants.

On the issue of damages, the Plaintiffs had served Mr. MacLeod with a Notice to Admit Written Opinions, to which Mr. Macleod did not respond. Graesser J. held that because Mr. MacLeod failed to respond to the Notice in the time permitted by Rule 6.37 (20 days), he was deemed to have accepted the Opinion.