Daniel Dooley

The Wises severed their lakefront property, gifting one lot with road access to the appellants and retaining a water-access only lot.

The respondent bank, holding a mortgage on the retained lot, applied for an easement of necessity over the appellants' lot.

The application judge granted the easement, finding water access impractical and relying on public policy.

The Court of Appeal allowed the appeal, holding that the test for an easement of necessity is strict necessity, not practical necessity.

Because water access existed at the time of the grant, the property was not inaccessible, defeating the claim for an easement regardless of inconvenience.

This endorsement addresses the costs of a consent motion for consolidation of a civil action and family law proceedings.

The moving party sought costs, arguing that the responding parties' delay in providing consent necessitated bringing a formal motion.

The court found that despite the delay, the motion ultimately proceeded on a consent basis.

The responding parties' counsel explained the delay was due to reconciling instructions from two clients (the lawyer personally and their insurer).

The court declined to award costs to the moving party, adhering to the general rule that consent motions do not attract costs unless unreasonable behaviour is demonstrated.

However, the court awarded modest costs of $500 to the responding parties for their preparation and attendance on the costs issue, acknowledging the helpfulness of their material and that the delay was not attributable to the moving party.

Stewart Title Guaranty Company, as a third party, brought a motion seeking an order to conduct invasive inspections of the plaintiffs' property to assess building deficiencies and repair costs.

The plaintiffs opposed, citing concerns about invasiveness and potential damage.

The court granted the motion under Rule 32.01 of the Rules of Civil Procedure, finding the inspection necessary for the proper determination of damages.

The court emphasized that Stewart Title's undertaking to restore the property to its previous condition alleviated the plaintiffs' concerns regarding potential damage from the invasive testing.

The parties sought clarification of a prior order that found an enforceable settlement agreement between them, specifically regarding whether a waiver of child support applied to retroactive or ongoing support.

The court determined that because the prior order incorporating the settlement terms had already been signed and entered, the judge was functus officio and lacked jurisdiction to interpret the agreement's contents or the parties' intentions.

Following a trial regarding rectification of a divorce judgment, the court addressed costs.

The applicant successfully obtained rectification of the divorce judgment under Rule 25(19) of the Family Law Rules to reflect the parties’ intention that a $100,000 payment be made, while the respondent achieved partial success by obtaining certain credits against that amount.

The court found the applicant had succeeded on the dominant issue but noted the legal question concerning the scope of Rule 25(19) was novel and that some of the litigation arose due to solicitor negligence.

Balancing these considerations, and finding no unreasonable conduct by the respondent within Rule 24(11), the court reduced the costs award.

Nominal costs were awarded to reflect divided success and the unusual circumstances of the case.

The plaintiff brought a motion for leave to appeal an interlocutory order to the Divisional Court under Rule 62.02(4)(a) of the Rules of Civil Procedure, arguing that another Superior Court decision created a conflicting authority warranting appellate review.

The court reviewed the alleged conflicting endorsement and the earlier motion decision and found no inconsistency in the legal principles applied.

The earlier endorsement addressed specific refusals on discovery and did not determine the threshold legal issue considered in the impugned decision.

The court held that the requirement of a “conflicting decision” was not met and therefore it was unnecessary to consider whether leave was desirable.

The motion for leave to appeal was dismissed, with commentary emphasizing counsel’s duty to disclose relevant authorities to the court.

The plaintiff brought a motion seeking a declaration that email communications between counsel constituted a binding settlement agreement resolving a dispute over a $300,000 advance.

The defendants argued the communications reflected only a framework for a potential agreement and that essential terms, including security requiring bank consent, remained unresolved.

Applying the principles governing contract formation and settlement agreements, the court held that the language used in the emails and the need for third‑party consent indicated no final agreement had been reached.

The court also relied on the parties’ subsequent conduct, including continued pleadings, as evidence that neither side considered themselves bound.

The defendant was entirely successful on a motion to compel the production of a bishop for examination for discovery and sought costs.

The plaintiff argued the defendant should be denied costs because its counsel failed to disclose a recent, allegedly similar decision by another judge.

The court held that the undisclosed decision dealt with different, narrower issues and was not binding, so the failure to disclose it did not deprive the defendant of costs.

Finding no reprehensible conduct by the plaintiff, the court awarded the defendant partial indemnity costs fixed at $15,000.

In an insurance coverage action arising from historic sexual abuse claims against priests, the insurer moved to compel a second corporate discovery by requiring the diocesan bishop to attend for examination.

The court held that Canon Law, church practices, policies, and diocesan oversight were relevant to pleaded allegations of material misrepresentation, non-disclosure, and bad faith in the procurement and renewal of insurance coverage.

Applying the framework governing multiple examinations for discovery of a corporation, the court found the existing representative lacked the necessary knowledge and that a second discovery was necessary for a full inquiry.

The motion was granted and the bishop was ordered to attend and answer the refused questions on those topics.

The plaintiff sought leave to appeal an order dismissing her motion for leave to bring a partial summary judgment motion on liability and contributory negligence after the action had been set down for trial.

The Divisional Court dismissed the motion for leave to appeal, finding that the motions judge correctly applied the test under Rule 48.04 and that there was no conflicting decision or reason to doubt the correctness of the order.

The court agreed that a summary judgment motion would not provide a proportionate, more expeditious, or less expensive means to achieve a just result than a trial.

The plaintiff, injured while delivering pizza when interacting with the defendants’ dog, sought leave under Rule 48.04(1) of the Rules of Civil Procedure to bring a motion for summary judgment on liability and contributory negligence after the action had been set down for trial.

The court held that summary judgment is only available where there is no genuine issue requiring a trial with respect to a claim or defence and that the plaintiff’s request effectively sought to bifurcate liability and damages without the defendants’ consent under Rule 6.1.01.

The court found the proposed motion would not provide a proportionate, more expeditious, or less expensive means to resolve the dispute, particularly given that evidence regarding the incident would need to be revisited at trial on damages.

Leave was therefore refused and the motion dismissed.

Costs were awarded to the defendants on a partial indemnity basis.

The appellant appealed the dismissal of its negligence claim against the respondent electrician, alleging the respondent damaged an armoured cable during installation, causing a fire.

The trial judge accepted the respondent's denial of severely abusing or yanking the cable, which rebutted the presumption of negligence suggested by the jointly retained expert.

The Court of Appeal found no error in the trial judge's assessment of the evidence or the adequacy of his reasons, and dismissed the appeal.

The appellant appealed a trial judge's order awarding the respondents costs on a substantial indemnity basis.

The Court of Appeal found that the trial judge erred in relying on three factors: the alleged lack of merit in the claim, non-Rule 49 offers to settle that contained no compromise, and an unproven allegation of 'sharp practice' by the appellant's former counsel during a prior motion.

The appeal was allowed, the costs order was set aside, and partial indemnity costs of $40,000 were substituted.

The appellant challenged a jury verdict in a personal injury action on the basis that the trial was unfair, relying on late service of expert reports, the applicability of a building code regulation, counsel's addresses, a Brown v. Dunn ruling, the jury charge, and cumulative unfairness.

The court held that no prejudice was shown from the timing of the reports, there was ample evidence of dangerous construction of the ramp regardless of the regulation's applicability, and the remaining complaints disclosed no reversible error.

The court also upheld the trial judge's treatment of gross-up.

The appeal was dismissed with costs.