Derek Sinko

The appellant appealed the dismissal of his claims for adverse possession or a prescriptive easement over parts of the respondents' neighbouring cottage property, which he had historically used to access Lake Erie.

The Court of Appeal upheld the trial judge's findings that the appellant's use of the lands was with tacit permission as an act of good neighbourliness, rather than acquiescence, and that the easement was not reasonably necessary given alternative access routes.

The court also affirmed the dismissal of the adverse possession claim, as the appellant failed to establish an intention to exclude the true owners.

The appeal was dismissed with costs.

Following the dismissal of both the plaintiff's action for constructive dismissal and the defendant's counterclaim for breach of restrictive covenants on summary judgment, the parties made written submissions on costs.

The defendant sought substantial indemnity costs based on an offer to settle, while the plaintiff sought partial indemnity costs for defending the counterclaim.

The court found the defendant's offer was an invitation to capitulate rather than a genuine compromise, and ordered that each party bear their own costs.

The plaintiff, a dental hygienist, resigned and sued her former employer for constructive dismissal after her hours were reduced.

The defendant counterclaimed for breach of non-competition and non-solicitation clauses.

On cross-motions for summary judgment, the court dismissed both the action and the counterclaim.

The court found the termination, non-competition, and non-solicitation clauses in the employment contract were unenforceable.

However, the court also found the plaintiff was not constructively dismissed, as the reduction in hours merely reverted her schedule to its historical norm and did not breach an essential term of the contract.

Following the dismissal of the plaintiff's action on summary judgment, the defendants sought full indemnity costs against the plaintiff and its principal personally.

The court found that the plaintiff's principal had fabricated an agreement of purchase and sale to support the claim, constituting an abuse of process.

The court awarded substantial indemnity costs to the defendants and held the principal jointly and severally liable for the costs due to his fraudulent conduct.

The plaintiff employee brought a motion under Rule 21.01(1)(a) seeking a pre-trial determination that the termination provision in her employment agreement was unenforceable.

The defendant employer opposed the motion, arguing it was an inappropriate use of the rule.

The court dismissed the motion, finding that the interpretation of the termination provision was a question of mixed fact and law, not a pure question of law.

Furthermore, the court held that deciding the issue would not dispose of the action, substantially shorten the trial, or save costs, especially since the primary issue was whether the employer had just cause for termination.

The applicant Estate Trustees sought the court's opinion and advice on interpreting a clause in the testator's will that granted one of her sons an option to purchase her 'farming business' for a fixed price.

The son argued that the testator's rental of the farm property to him constituted carrying on the farming business.

Applying the armchair rule, the court found that the testator intended the phrase to mean the active farming business she and her late husband had previously operated, not the passive rental of land.

As the testator was not carrying on the active farming business at her death, the option to purchase was declared ineffective and the farm property fell into the residue of the estate.

The plaintiff commercial tenant sued the defendant landlord and its principal for damages after the landlord refused to consent to a lease assignment to a prospective purchaser of the tenant's business.

The plaintiff alleged promissory estoppel, fraudulent misrepresentation, and intentional interference with contractual relations.

The defendants moved for summary judgment.

The court granted the motion and dismissed the action, finding that promissory estoppel cannot be used as a sword to found a claim, the alleged misrepresentation was a future promise rather than a statement of fact, and there was no evidence of unlawful interference.

The plaintiff's cross-motion to transfer a related Small Claims Court action was also dismissed.

The defendants hired the plaintiff to construct a modular home.

A dispute arose, and the plaintiff registered a construction lien.

The defendants obtained an order vacating the lien upon posting security and subsequently brought a motion to have the security returned, arguing the lien was not perfected within the statutory timelines under the Construction Lien Act.

The court found that the contract was abandoned at the latest on December 2, 2017, and since the statement of claim was issued more than 90 days later, the lien expired.

The court ordered the return of the security to the defendants.