David Steven Cherepacha

An appeal concerning the validity and location of an access easement reserved by CN when it sold property to Remicorp in 2002.

CN later transferred its easement rights to Metrolinx in 2010.

The application judge found the easement had been abandoned by implied release and by operation of law, and ordered it relocated from Part 5 to Part 1 of the property.

The Court of Appeal allowed Metrolinx's appeal, finding the application judge erred in concluding abandonment occurred.

The court held that non-use alone is insufficient to establish abandonment without evidence of intention to abandon, and that the three registrations on title (2002, 2003, and 2010) evidenced the absence of such intention.

The court also found the application judge erred in relocating the easement, as this deprived Metrolinx of its contractual rights under the easement agreement without proper application of the legal test under the Conveyancing and Law of Property Act and Land Titles Act.

Following a successful application confirming user in common rights on a subdivision plan, the applicants sought costs of $51,593.86.

The respondent landowners argued the amount was excessive for a one-day hearing.

The respondent municipality also sought costs against the respondent landowners.

The court awarded the applicants $45,000 in partial indemnity costs, finding the claimed amount excessive despite the complexity of the historical real estate issues.

The municipality was awarded $2,500 in costs for its helpful submissions, though its costs were reduced because it remained adverse in interest to the applicants until the morning of the hearing.

The applicant developer sought a provisional building permit for a townhouse development, which the City refused, demanding an off-site parkland dedication instead of cash in lieu of land.

The applicant appealed the refusal and applied for a declaration interpreting the municipal bylaw.

The court dismissed the appeal as premature because the applicant lacked final planning approval.

However, the court granted the application for a declaration, finding that under the plain language of the bylaw, the City cannot require an off-site parkland dedication without the developer's agreement.

The applicants, owners of lots on a 1950 plan of subdivision, sought a declaration that certain lots designated as an 'area of user common to each property owner' remained subject to those rights.

The respondent owners of the fee simple in those common lots argued the rights had expired under the Registry Act and were extinguished upon conversion to the Land Titles system.

The court held that the dedication created valid, subsisting quasi-public rights and easements that were openly enjoyed and thus saved from expiry under the Registry Act.

The court declared the lands remain subject to the applicants' rights and prohibited the respondents from interfering with them.

The moving parties, several banks and a financial institution, sought leave to appeal a motions judge's refusal to grant summary judgment dismissing the plaintiff's claims in conversion and preclusion.

The underlying action involved a fraudulent scheme where a customer forged endorsements on cheques and bank drafts, deposited them with the plaintiff collecting bank, and the moving parties subsequently reverse-cleared the instruments.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the motions judge's decision that the conversion and preclusion claims raised genuine issues for trial, and noting the issues were of general importance to the banking industry.

The appellants appealed a trial decision dismissing their application for a declaration that the insured was dead under section 208 of the Insurance Act.

The trial judge had relied on hearsay evidence from an investigator regarding statements made by the insured's sister, which suggested the insured had planned to fake his death.

The Divisional Court found that the trial judge committed a palpable and overriding error by using this hearsay evidence for a truth purpose without properly applying the principled approach to hearsay.

The appeal was allowed and a new trial was ordered.

The insurer appealed a trial judgment granting disability benefits despite findings of material misrepresentations about health and income.

The Court of Appeal held that the trial judge erred by failing to consider recklessness as a basis for civil fraud under the governing test, and further held that on reinstatement of the policy the insured had a positive duty to disclose facts plainly bearing on insurability, including the absence of any insurable income, even where the insurer did not insist on a written reinstatement application.

Because the nondisclosure at reinstatement occurred within two years, the incontestability clause did not protect the insured.

The policy was voidable and the action was dismissed.