Andrew M. Mae

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.

The applicant filed a human rights application alleging discrimination with respect to contracts on the basis of ethnic origin and creed, arising from the termination of a trailer park lease.

The respondents requested to defer the application because the applicant had also commenced a parallel civil action in Small Claims Court alleging breach of contract and wrongful eviction.

The Tribunal found that the close relationship between the facts and issues in the two proceedings strongly favoured deferral to avoid adjudicative duplication.

The application was deferred pending the conclusion of the civil action.

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.