Andrea Habas

The defendant brought a motion to extend trial procedures, withdraw deemed admissions, and seek further documentary production on the eve of a twice-adjourned trial.

The court granted the defendant leave to file new trial affidavits, deliver late notices of objection, and withdraw deemed admissions, finding that the lapses were inadvertent and the preference is to decide matters on their merits.

However, the court ordered the defendant to pay $50,000 in costs thrown away and $20,000 in motion costs to the plaintiffs as a condition of the relief.

The plaintiff brought a motion to set aside a Registrar's order dismissing his action for delay.

The action involved a claim for repayment of a $161,000 loan allegedly made to the defendants for a property purchase.

The court applied the Reid test and found that the plaintiff provided a reasonable explanation for the delay, the deadline was missed through the inadvertence of his former counsel, the motion was brought promptly once the dismissal was discovered, and the defendants would not suffer actual prejudice.

The motion was granted and the dismissal order was set aside.

The applicant sought a declaration that it possessed a prescriptive easement permitting use of a private laneway over the respondent’s property to access parking at the rear of its premises.

The claim relied on alleged continuous and uninterrupted use by the applicant’s predecessors in title for over 20 years before the lands were converted to the Land Titles system.

The court reviewed the principles governing prescriptive easements and the doctrine of lost modern grant, emphasizing the requirement that use be “as of right” rather than permissive.

The evidence established long-standing use of the laneway but did not demonstrate that the use occurred without permission or that the servient owner acquiesced to an asserted right.

The court concluded the use was more consistent with a neighbourly licence than a legally enforceable easement.