Craig Losell

The appellant appealed from a motion judge's dismissal of his action seeking a declaration of adverse possession over part of the respondents' property.

The appellant contended that the motion judge failed to consider evidence of his predecessor in title's mistaken understanding regarding the boundary location.

The Court of Appeal found no error in the motion judge's conclusion that the predecessors had no intention to use the land to the exclusion of its true owner, based on the totality of evidence including the R-Plan filed in support of conversion to the Land Titles Act regime.

The court also rejected the appellant's assertion regarding an old fence creating a boundary, finding it unsupported by evidence.

The Applicant sought costs on a substantial indemnity basis after partially succeeding in an application to close a travelled path.

The Respondent argued for divided success and no costs, or partial indemnity.

The court found success was divided, but the application was necessary for both parties to determine their rights.

The court declined substantial indemnity, finding no exceptional circumstances, and awarded partial indemnity costs to the Applicant, fixed at $7,798.92 inclusive of HST and disbursements.

The plaintiff subcontractor moved for summary judgment for unpaid contract and extra work totaling $131,919.97 under a construction contract.

The defendant contractor asserted deficiencies and attempted to rely on claims arising from a separate construction project to assert set-off.

The court found the plaintiff’s claim was fully proven and largely undisputed, except for a limited deficiency claim forming part of a counterclaim.

The court held that statutory set-off under s. 17(3) of the Construction Lien Act did not apply because the separate project involved different parties and lacked contractual privity, and equitable set-off was also unavailable due to insufficient connection between the projects.

Summary judgment was granted for the plaintiff with enforcement partially stayed pending trial of the lien claim and reduced counterclaim.

The plaintiff sued his nephew and sister for an unpaid loan of $142,307.21, alleging the nephew borrowed the money and the sister guaranteed it as executrix of their mother's estate.

The defendants brought summary judgment motions, arguing the claim was barred by a mutual release executed to settle a decade of prior estate litigation.

The court granted the sister's motion, finding the broad release extinguished the claim against her.

However, the court dismissed the nephew's motion, concluding there was a genuine issue for trial because he was not a party to the release and the parties did not intend to extinguish his personal debt.

The defendant brought a motion to transfer a Small Claims Court action to the Superior Court of Justice where the defendant had filed a counterclaim exceeding the monetary jurisdiction of the Small Claims Court.

The counterclaim alleged breach of fiduciary duty and sought damages representing the value of an equity golf club membership allegedly confiscated following changes to membership policies.

The court held that the issues raised required documentary discovery, expert valuation evidence, and consideration of equitable claims not suitable for Small Claims Court procedures.

Applying principles from prior authority, the court found that transfer would promote the just, most expeditious, and least expensive determination of the dispute and avoid a multiplicity of proceedings.

The matter was ordered transferred to the Superior Court of Justice.

Following a successful motion by the defendant foundation to vacate multiple construction liens upon payment into court of the general contractor’s lien amount, the court addressed costs.

The moving party had previously served an offer to settle that closely mirrored the relief ultimately granted.

The unsuccessful plaintiff opposed the motion and declined the offer.

Applying the principles governing costs and considering the settlement offer and the reasonable expectations of litigation expense for such a motion, the court fixed costs in favour of the moving party at the higher end of the anticipated range.

A project owner sought an order vacating multiple construction liens by paying security into court equal to the general contractor’s lien claim plus security for costs.

The contractor argued the owner should be required to post security covering both the contractor’s lien and additional subcontractor lien claims.

The court applied s. 17 of the Construction Lien Act, holding that subcontractors claiming through a contractor are limited to the amount owed by the owner to that contractor, absent holdback breaches.

Because the subcontractor claims arose through the contractor and were largely subsumed within the contractor’s lien claim, the owner was not required to post additional security for them.

The court ordered the liens vacated upon payment of the contractor’s lien amount plus security for costs.

At a Rule 48.14 status hearing, the court considered whether a civil action should be dismissed for delay.

The plaintiffs were required to show cause why the action should not be dismissed by providing an acceptable explanation for the delay and demonstrating the absence of non‑compensable prejudice to the defendants.

The court accepted that the individual driving the litigation for the corporate plaintiffs had been preoccupied with related criminal proceedings and bankruptcy examinations, which reasonably explained the delay in advancing the action.

The court also found no evidence that witnesses or documents had become unavailable due to the delay.

Balancing the interests of fairness and the policy against litigation delay, the court permitted the action to proceed.