Mr. Brubacher

The appellant appealed a trial judgment granting the respondent possessory title over a portion of his beachfront property by way of adverse possession or, alternatively, a prescriptive easement.

The Court of Appeal allowed the appeal in part, setting aside the finding of adverse possession because the respondent had not effectively excluded the appellant from the property.

The Court also varied the easement finding, limiting it to non-vehicular traffic on a specific path, as there was no continuous 20-year period of vehicular use.

The trial judge's costs orders, including an order against the appellant's counsel personally, were set aside.

Following a successful claim for possessory title, the claimant sought costs for two protracted appeal hearings.

The court awarded costs on a substantial indemnity basis, fixed at $490,000, citing the claimant's multiple favorable Rule 49 offers to settle and the objector's unreasonable and vexatious conduct throughout the proceedings.

During a property dispute trial, the possessory claimant brought a mid‑trial motion seeking production of email communications and notes exchanged between the objector’s counsel and the objector’s expert surveyor.

The court found that the communications were relevant to assessing whether the expert had abandoned the role of an independent expert and instead acted as an advocate for the retaining party.

Claims of solicitor‑client privilege, litigation privilege, and the lawyer’s work product doctrine were rejected for most communications because the materials were probative of expert bias and formed part of the factual foundation for the expert’s opinions.

The court held that exposing potential expert bias justified disclosure notwithstanding privilege claims.

The motion was granted and the communications were admitted into evidence on a voir dire.