D. Peter Best

The plaintiff brought a motion to strike the defendant's statement of defence and counterclaim, which contained allegations of deceit, intimidation, and bad faith bargaining.

The defendant subsequently brought a motion to amend the pleadings.

The substantive issues were resolved on consent, leaving only the issue of costs.

The court found that the defendant's original pleading was flawed and that the plaintiff was justified in challenging it, but criticized both counsel for failing to resolve the matter without court intervention.

Applying principles of proportionality, the court awarded the plaintiff fixed costs of $6,000, significantly reducing the amount claimed.

Neighbouring property owners disputed ownership and use of three narrow strips of land including a shared driveway, a storage area, and a backyard strip.

The plaintiffs claimed adverse possession and alternatively an easement under the doctrine of lost modern grant.

The court held that adverse possession failed for the driveway and storage area because the plaintiffs’ use was not inconsistent with the true owner’s use and their claimed mistaken belief of ownership was not credible.

However, adverse possession succeeded for a backyard strip where a fence had been erected under a mutual mistake as to the boundary.

The court also recognized a prescriptive easement over the driveway under the doctrine of lost modern grant, permitting parking and related maintenance rights.

Following a successful trial, the plaintiff sought substantial indemnity costs after obtaining a judgment exceeding its settlement offer.

The defendant argued that proportionality warranted a reduced costs award.

The court considered the factors under Rule 57 of the Rules of Civil Procedure and the principle of proportionality under Rule 1.04(1).

The court held that the defendant could not rely on proportionality after forcing the plaintiff to prove every aspect of its claim despite an earlier favourable default judgment and an unaccepted settlement offer.

The requested costs were found to be fair and reasonable and were awarded in full.

The defendants brought a motion for partial summary judgment dismissing the plaintiffs’ claim for a prescriptive easement over a narrow portion of the defendants’ driveway used for parking.

The motion argued that the plaintiffs failed to demonstrate 20 years of continuous use prior to conversion to the Land Titles system, that mistaken belief in ownership defeated the “as of right” requirement, and that the claimed easement area was excessive.

The court held that evidence from neighbours and prior occupants could establish the required period of open, continuous, and peaceful use and therefore raised a genuine issue requiring a trial.

The court further held that mistaken belief in ownership does not defeat a prescriptive easement claim and that “knowing trespass” is not required.

The motion for summary judgment was dismissed.

The plaintiff built a camp on an island partially owned by his former mother-in-law, the defendant.

After the plaintiff and the defendant's daughter separated, the plaintiff continued to use and maintain the camp exclusively for 20 years.

When the defendant attempted to terminate his use of the camp, the plaintiff brought an action claiming ownership or equitable relief.

The court found that while the camp was a fixture belonging to the realty, the plaintiff established claims for unjust enrichment and proprietary estoppel.

The court granted the plaintiff a constructive trust and a personal licence to occupy the camp for his lifetime, provided he maintains it and pays associated costs.

At a contested status hearing for two related actions, the defendants sought an order dismissing the plaintiffs' actions for delay.

The actions, commenced in 2003 and 2004, involved complex corporate restructuring and real estate disputes.

The defendants argued prejudice due to the delay and the deaths of a plaintiff and a key witness.

The court found that the plaintiffs had not intended to abandon the actions and provided a reasonable explanation for the delay, which included numerous interlocutory proceedings.

The court concluded that dismissing the actions would be a draconian step and instead ordered the actions to continue subject to a strict timetable and a guillotine order.

The defendants brought a motion to dismiss the plaintiffs’ action for failure to comply with undertakings given during cross‑examination in a long‑running commercial dispute.

Several undertakings relating to financial records, loan documentation, tax returns, and trust information remained outstanding despite prior court orders requiring compliance.

The court found that the plaintiffs had failed to diligently comply and that the attempted responses amounted largely to non‑answers.

While dismissal of the action under Rule 60.12 of the Rules of Civil Procedure was considered, the court held that dismissal would be disproportionate at that stage.

Instead, the plaintiffs were precluded from advancing evidence at trial relating to damages allegedly sustained by two corporations or claims based on those corporate losses.

The appellant appealed a Small Claims Court judgment dismissing its claim for damages arising from an alleged breach of a settlement agreement related to engine repair work.

The appellant argued that the settlement required delivery of a completely rebuilt and reassembled engine and that the trial judge erred in excluding its former counsel as a witness and in finding no misrepresentation.

The court held that the Small Claims Court judge made no palpable and overriding error in finding that the appellant had constructive knowledge of the engine’s disassembled condition through its employee.

The appellate court also upheld the exclusion of counsel’s viva voce evidence for policy reasons relating to solicitor-client privilege and the proper role of counsel.

The appeal was dismissed.