Andrew M. Mae

The appellants appealed a judgment declaring a non-seasonally limited easement over their property in favour of the respondents' landlocked cottages and enjoining them from interfering with access.

The Court of Appeal dismissed the appeal, finding that the deeds unambiguously granted unrestricted rights of way.

The court also rejected arguments regarding ineffective assistance of counsel in a civil context, the relocation of the easement, the test for a permanent injunction, the restriction to a single gate, and the absence of a respondent's factum at the application stage.

The judgment was varied on consent to remove the word 'prescriptive' as the easement was deeded.

The plaintiff brought an urgent motion seeking to vary a previous order, permit cloning of a defendant's laptop hard drive, compel password disclosure, freeze and disclose defendant's assets at Sun Life, and reserve costs.

This was the third time the issue of preserving laptop data was before the court.

The court denied the request to clone the laptop, finding no sufficient evidence of relevance beyond speculation and that the balance of convenience weighed against preservation.

The court ordered the immediate return of the laptop to the defendant.

The Mareva Injunction was extended to include Sun Life assets for clarity, but specifically excluded a newly opened TD Canada Trust account.

Costs were reserved.

The plaintiff sought an urgent ex parte Mareva injunction and other ancillary injunctive relief against the defendants, alleging that the defendant Tami Kone, a former bookkeeper, had fraudulently issued cheques to herself totaling over $312,000 from the company's account.

The court granted the Mareva injunction, finding that the plaintiff had established a strong prima facie case, irreparable harm, and that the balance of convenience favoured the plaintiff, along with a genuine risk of asset dissipation.

However, the court denied the requested ancillary orders for registering PMSI liens and retaining/imaging a personal laptop, citing lack of authority and privacy concerns.

The appellants appealed a trial judgment on three grounds: the trial judge's credibility assessments, alleged collusion by one respondent with witnesses, and prejudice from a five-month trial adjournment.

The Court of Appeal found that the trial judge's credibility findings were adequately explained within the context of the entire judgment and were warranted on the evidence.

The court found no evidentiary support for the collusion allegation, noting that the witnesses' trial testimony was inconsistent with the "will-say" statements allegedly prepared by the respondent, making collusion implausible.

The court rejected the adjournment argument, holding that absent demonstrated actual prejudice or a request for an earlier date at trial, a five-month adjournment does not presumptively require a new trial.

The appeal was dismissed with costs awarded to the respondents.

The appellants appealed a decision establishing the boundary line between their property and the respondent's property.

The application judge determined that a fence line, rather than a surveyor's measured line, constituted the proper boundary based on surveying principles and historical evidence.

The appellants raised four grounds of appeal, contending the application judge misinterpreted surveyor field notes, failed to properly consider a surveyor's plan, failed to apply proper legal principles, and based the boundary location on facts not in evidence.

The Court of Appeal found no palpable and overriding errors and upheld the lower court decision.

The defendants sought costs following a 20-day trial where the plaintiffs' claims were dismissed and the defendants succeeded on their counterclaim.

The court awarded the first group of defendants costs on a substantial indemnity basis due to the plaintiffs' reprehensible conduct, which amounted to elder abuse.

The second group of defendants was awarded partial indemnity costs, as the claims against them were not found to be vexatious.

Total costs of over $325,000 were awarded against the plaintiffs.

The plaintiffs, a couple who sponsored the immigration of the wife's elderly parents (the Nikityuks) from Russia, sued the parents and the YMCA (and an employee) for inducing breach of contract, negligence, conspiracy, and defamation after the parents moved out of their shared home into social housing.

The Nikityuks counterclaimed for fraud, misrepresentation, conversion, unjust enrichment, breach of contract, and breach of fiduciary duty, seeking damages for lost capital and a constructive trust on the home.

The court dismissed all of the plaintiffs' claims, finding no malice or unlawful conduct by the YMCA defendants.

The court granted the Nikityuks' counterclaim, finding that the plaintiffs had financially abused the Nikityuks, breached their contract and fiduciary duties, and committed civil fraud by misrepresenting investment returns on the Nikityuks' capital, which was subsequently lost in the stock market.

The Nikityuks were awarded damages for their lost capital, interest, a constructive trust on the Innisfil property, and punitive damages.

The applicant, Steve Smith, sought specific performance of an alleged oral agreement to purchase a unique lakefront property from the respondents, Terry Richard Vankoughnet and Jeremy Rasmussen.

Concurrently, the respondents moved to discharge a Certificate of Pending Litigation (CPL) that Smith had obtained against the property.

The court found no binding oral or written agreement, no sufficient acts of part performance to overcome the Statute of Frauds, and that the property was not unique such that damages would be an inadequate remedy.

The court also noted issues with Smith's identity as the "true applicant" acting for a non-existent corporation.

Consequently, the motion to discharge the CPL was granted, and Smith's application for specific performance was dismissed.

This decision addresses costs following a successful cross-application by the respondent, Gordon Robert Anderson, in a land dispute.

The respondent filed costs submissions, while the applicants, Karen Jean Weaver and William Bryce Weaver, did not.

The court applied Rule 49.10(1) of the Rules of Civil Procedure, which entitles a party to partial indemnity costs to the date of an offer to settle and substantial indemnity costs thereafter if they obtain a judgment as favourable as their offer.

Considering factors under Rule 57.01(1), including the complexity of the proceeding, the importance of the issues, and the value of an expert report, the court awarded the respondent $48,654.30 in fees plus applicable taxes, and $17,706.80 in disbursements, to be paid by the applicants within 90 days.

This case involved a boundary dispute between adjacent property owners on Shawanaga Lake, concerning a piece of land known as "the Point." The applicants sought a declaration of ownership based on a surveyed "White line" while the cross-applicant (respondent) argued the boundary should follow an older fence line, seeking a declaration of ownership or adverse possession.

The court found that the original surveyor erred by not accepting the fence line as the boundary, contrary to established surveying principles and common law.

While acknowledging the historical error, the court ultimately declared the boundary to be the westerly limit of Part 1, Plan 42R-12887, which was consistent with the cross-applicant's long-standing occupation and made the disputed Part 1 his property.

The Land Registry was ordered to amend its records accordingly, and a caution registered by the cross-applicant was vacated.

The applicants achieved substantial success in an application and cross-application regarding an easement and right-of-way dispute, which was largely settled on the eve of the hearing.

The court considered the costs of the applications.

Applying Rule 57 and the principles of proportionality and reasonableness, the court awarded the applicants costs fixed at $48,105.58 on a partial indemnity basis.

The court noted the applicants' generous settlement offers and the respondents' lack of cooperation and diligence throughout the litigation.

This case involved an application and cross-application concerning easement and right-of-way issues over a property.

The applicants sought orders to rectify title deeds to confirm their right to park on and have unrestricted access to a right-of-way.

The cross-applicant sought to limit the right-of-way's terminus and deny parking rights.

The court found that the applicants had an unrestricted means of access and egress from and to the right-of-way at any point along its northerly boundary, based on the original grant and the mutual intention of the parties who created it.

The court also confirmed the applicants' right to park four vehicles on the right-of-way.

The respondent William Alfred King was noted in default.

The applicant and respondent, who are stepfather and stepson, disputed the ownership of a residential property.

The property was initially purchased in the respondent's name but subsequently transferred into joint tenancy with the applicant and his wife (the respondent's mother), and later to the applicant and his wife alone, for nominal consideration.

The respondent claimed the property was held in trust for him, while the applicant sought partition and sale.

The court found that the applicant had provided valuable consideration for the transfers, rebutting any presumption of a resulting trust.

The court ordered the partition and sale of the property and awarded occupation rent to the applicant.

An insolvent developer applied for interpretation of a subdivision agreement and standby letter of credit securing municipal works in a development project.

The developer argued that the municipality could use proceeds from the letter of credit to pay unsecured trade creditors who had supplied goods and services before the developer’s insolvency.

The court held that the agreement limited the municipality’s entitlement to prospective costs associated with completion or rectification of municipal works and did not authorize retroactive payment to unsecured creditors.

The court rejected reliance on the autonomy doctrine governing letters of credit, noting that permitting such retroactive payments would be fraudulent where the bank had not secured those obligations.

The application for the requested interpretation was dismissed.

The appellants appealed a trial decision in a construction lien action, arguing the trial judge misapprehended evidence, failed to find a verbal contract altering payment terms, and was biased.

The Divisional Court dismissed the appeal, finding the trial judge's conclusions were supported by the evidence and the unambiguous written agreement.

The court also rejected the bias allegation, noting it was not raised at trial and had no basis.

Costs of $25,000 were awarded to the respondents.

Following the release of reasons for judgment on the appeal, the Court of Appeal received written submissions on costs.

The Court declined to fix costs for the underlying application, directing the parties to make submissions to the application judge.

For the appeal, the Court rejected the respondents' claim for substantial indemnity costs, determining that partial indemnity was appropriate, and fixed the respondents' costs at $15,000 inclusive of disbursements and GST.

The appellant property owner sought a declaration that the respondents' registered rights of way over its land had expired under Part III of the Registry Act.

The appellant argued that the 1981 amendments required a notice of claim in the prescribed form to preserve an easement after 40 years.

The application judge dismissed the application, finding that a claim could also be preserved if referenced in an instrument registered within the title search period.

The Court of Appeal dismissed the appeal, holding that the statutory definition of 'notice period' and the complementary nature of the title search and expiry periods supported the preservation of claims through reference in registered instruments.