Adam Zasada

The plaintiffs sued their title insurer, FCT, after being denied coverage for alleged construction deficiencies.

FCT brought a third party claim against the tort defendants (the sellers/builders and municipality) for contribution and indemnity.

The plaintiffs brought a cross-motion to strike FCT's third party claim for failing to disclose a reasonable cause of action.

The court granted the cross-motion, finding that FCT had not settled the plaintiffs' claim and therefore could not rely on the Negligence Act, common law, equity, or subrogation rights to claim contribution and indemnity.

The court also granted FCT's motion on consent to have the title insurance action and the tort action heard together or consecutively to avoid duplication.

This decision concerns the issue of costs following a dispute over road access.

The applicants, Geoffrey Palin and Amy Johnston, were substantially successful in their application and in opposing the respondents' (Norman and Barbara McIntosh) counter-application.

The court awarded the applicants substantial indemnity costs, finding that their offers to settle were more favourable than the outcome and that the respondents' conduct, including unilaterally changing a lock on an access gate and compelling litigation, was unreasonable and compounded the complexity of the proceedings.

The court clarified that for costs purposes, a counter-application should be treated analogously to a counterclaim, allowing for a holistic assessment of costs for both proceedings.

The applicants purchased a property and sought to enforce a prior court order granting them use of a private road over the respondents' property.

The respondents brought a counterapplication seeking a declaration that the road was not an 'access road' under the Road Access Act and an order closing it to the applicants due to an alleged alternate route.

The court held that the respondents were estopped from arguing the road was not an access road due to their concession in the prior proceeding.

The court also found that the respondents failed to prove a change in circumstances, as the alternate route was not a reliable year-round access.

The applicants were permitted to continue using the road subject to the conditions of the prior order.

The plaintiff estate trustee brought a motion for default judgment to rectify title to a condominium property.

The deceased plaintiff had alleged that the defendants fraudulently transferred the property into joint tenancy, registered a forged power of attorney, and obtained a mortgage without his knowledge or consent.

The court found the instruments were fraudulent under the Land Titles Act and ordered them deleted from title.

The court also awarded $10,000 in punitive damages against the fraudulent actor and substantial indemnity costs.