Gregory F. Stewart

The appellants appealed an order giving directions regarding the distribution of funds remaining in trust after the sale of Driftwood Beach Park Limited's assets and the reimbursement of funds by certain appellants to the company.

The Court of Appeal found no basis to interfere with the motion judge’s determinations, including findings regarding the purchase and customization of a 2022 Honda, salary for James Kemp, and compensation for Ms. Kemp.

The appeal was dismissed, and costs were awarded to the respondents.

This costs endorsement addresses the entitlement of the Chippewas of Nawash Unceded First Nation and Saugeen First Nation (SON) to costs from Ontario following a partially successful appeal.

SON had sued Canada and Ontario for Aboriginal title to submerged lands and for breaches of fiduciary duty.

The Court of Appeal allowed SON’s title claim appeal to the extent of remitting the matter back to the trial judge for a determination on a more limited portion of the claim area, while dismissing their treaty claim appeal.

SON had settled costs with Canada and was not seeking costs for the treaty claim.

The court found that SON was the overall successful party on the title claim appeal against Ontario, as they obtained the relief sought (remittal), and Ontario's position was to dismiss the claim entirely.

The quantum of costs sought by SON was deemed reasonable given the complexity and public importance of the appeal.

The Saugeen Ojibway Nation (SON) brought two actions against the Crown and several municipalities.

In the Aboriginal Title Claim, SON sought a novel declaration of Aboriginal title to a large portion of the submerged lands in Lake Huron and Georgian Bay.

The court dismissed this claim, finding that while SON had a spiritual connection to the water and relied on fishing, they did not establish sufficient and exclusive physical occupation of the claimed submerged lands at the time of British sovereignty in 1763.

In the Treaty Claim, SON alleged that the Crown breached Treaty 45½ (1836) by failing to protect the Bruce Peninsula from settler encroachments, and breached duties during the negotiation of Treaty 72 (1854).

The court found that the Crown breached the honour of the Crown by failing to diligently fulfill its promise to protect the Peninsula from squatters, and by inappropriate conduct during the August 1854 treaty negotiations.

However, the court dismissed the claims for breach of fiduciary duty.

The court also declared that Treaty 72 did not extinguish SON's harvesting rights, which continue on unsold lands and on sold lands where the use is not incompatible with harvesting.

Property-specific remedies and defences were deferred to a second phase of the trial.

The applicant sought a prescriptive easement over a sand path on the respondents' land to access the beach from his cottage.

The respondents opposed, arguing the easement was not reasonably necessary and that their predecessors in title were unaware of the path's use.

The court found that the path was reasonably necessary for the better enjoyment of the cottage property and that the applicant had proven 20 years of continuous, open, and uninterrupted use.

The motion for a prescriptive easement was granted.

At trial, the defendants sought a further adjournment after a history of previous adjournments and their failure to attend court.

The court acknowledged the difficulty faced by defence counsel but noted that the defendants were not present for trial and that the conditions set out in an earlier endorsement had been met.

As a result, the court dismissed the defence and counterclaim and directed that the action proceed as an undefended matter.

The plaintiff was permitted to requisition default judgment through the Registrar pursuant to the Rules.

The plaintiffs sued the defendants for damages arising from the purchase of a defective wind turbine from one of the defendant corporations.

The defendants brought a motion for summary judgment to dismiss the claims against two affiliated corporations, arguing they were separate legal entities.

The court dismissed the motion, finding that the plaintiffs' claims regarding lifting the corporate veil, agency, and pure economic loss for negligent manufacture raised genuine issues requiring a trial, particularly given the conflicting evidence on the degree of control and integration among the corporations.

The plaintiff lender brought a motion for summary judgment to enforce a $250,000 personal guarantee provided by the defendant in support of a corporate credit facility.

The defendant argued that several payments made by a corporation he controlled should reduce his liability under the guarantee based on an alleged understanding with the lender.

The court applied the summary judgment framework under Rule 20 and the “full appreciation test” articulated in Combined Air Mechanical Services Inc. v. Flesch.

The documentary evidence, including multiple forbearance agreements acknowledging the validity of the guarantee, contradicted the defendant’s asserted understanding.

The court held there was no genuine issue requiring a trial and granted summary judgment.