Christopher Dilts

The plaintiff, Upscale Getaways Inc., brought a motion to set aside a registrar's order dismissing its action for delay.

The defendant, Lais Hotel Properties Limited, opposed the motion and sought an order for security for costs under Rule 56.09.

The court found that while there was egregious delay without reasonable explanation and no inadvertence, the plaintiff moved promptly to set aside the dismissal, and the defendant would suffer no prejudice given its ongoing counterclaim arising from the same facts.

The motion to set aside the dismissal was granted, and a timetable for the action was ordered.

The defendant's request for security for costs under Rule 56.09 was denied, as there was no conduct warranting such a term, but without prejudice to a motion under Rule 56.01.

Costs were awarded to the defendant.

The applicant sought declarations for a prescriptive easement over a portion of an adjoining property for a vehicle turnaround area and for ownership by adverse possession of a narrow strip of land on another adjoining property.

The court found that the applicant established all five criteria for a prescriptive easement, demonstrating continuous, uninterrupted, open, and peaceable use for over 20 years without permission, and that the use was reasonably necessary for the enjoyment of the dominant tenement.

The court also found that the applicant established adverse possession of the strip of land for over 10 years prior to the land's conversion to Land Titles.

Both declarations were granted in favour of the applicant.

The respondent moved to dismiss the applicant's application for a constructive trust over a shared property, arguing the Superior Court of Justice, Family Court lacked jurisdiction.

The court found the application was properly brought in the Superior Court of Justice and that the Family Law Rules applied because the parties' arrangement was made in anticipation of cohabitation.

The respondent's motion was dismissed, his separate civil proceeding was permanently stayed, and he was enjoined from entering the property.