Francis Roy

Costs endorsement following an appeal and cross-appeal.

The court awarded costs of the appeal and cross-appeal to the respondent (appellant-by-cross-appeal) on a partial indemnity basis, fixed at $27,500 inclusive of disbursements and GST.

The appellant appealed a decision granting declaratory relief to the respondent regarding an easement and an undertaking to grant a further access easement.

The appellant argued the easements were conditional on the respondent building a synagogue on its retained lands, which it later decided to develop for residential purposes.

The Court of Appeal dismissed the appeal, finding no language in the agreements or undertaking restricting the use of the easements to a synagogue, and no evidence that the change in use would increase the burden on the servient tenement.

The respondent's cross-appeal to stay the discharge of a Certificate of Pending Litigation until the easement was registered was allowed.