Gregory W. Roberts

This appeal concerned a dispute over a shared boundary between lakefront cottage properties and the location of a dock.

The trial judge found the boundary to be ambulatory, extending to the water's edge, and that the land under the dock was adversely possessed, but the dock could not impede riparian rights.

The Court of Appeal dismissed both the main appeal, which challenged the boundary determination and the application of accretion/avulsion principles, and the cross-appeal, which challenged the adverse possession finding.

The court found no reversible error in the trial judge's determination of the boundary based on grantor's intent and upheld the adverse possession finding, noting it was supported by evidence.

In a receivership proceeding, the Receiver brought a motion for declaratory relief regarding amounts owed under a loan and mortgage by the respondents.

The respondents brought a cross-motion arguing the Receiver's claim was barred by the two-year limitation period under the British Columbia Limitation Act.

The court found that while the respondents had not acknowledged liability to extend the limitation period, a prior petition commenced by the respondents in British Columbia within the limitation period preserved the claim.

The court held the Receiver's motion was not statute-barred and could proceed to be determined on its merits.

The plaintiff vendor and defendant purchaser entered into an agreement of purchase and sale for a property.

The purchaser paid an $80,000 deposit.

On the closing date, the purchaser's lawyer emailed the vendor's lawyer stating the purchaser did not have financing and could not close.

The vendor's lawyer responded with a letter accepting the anticipatory breach, stating the deposit was forfeited and the vendor would sue for damages.

The purchaser argued the acceptance was not clear and unequivocal because the vendor had discussions with a real estate agent about extending the closing.

The court found the vendor's lawyer's letter was a clear and unequivocal acceptance of the anticipatory breach and the discussions did not constitute a waiver.

The court ordered the $80,000 deposit paid to the vendor as damages and dismissed the purchaser's counterclaim.

The moving party purchaser failed to close on a condominium unit and subsequently moved into the unit without permission.

The responding party vendor obtained a default judgment terminating the agreement, forfeiting the deposits, and granting a writ of possession after the moving party failed to attend the hearing.

The moving party brought a motion to set aside the default judgment under Rule 38.11 of the Rules of Civil Procedure.

The court applied the test for setting aside default judgments and dismissed the motion, finding that while the moving party's failure to attend was a mistake and she moved promptly, she did not have an arguable defence on the merits for failing to tender funds on closing.

The plaintiffs brought a motion for further document production, including an independent search of a defendant's emails, and costs thrown away due to a trial adjournment.

The defendants brought motions for leave to amend a statement of defence and for production of settlement agreements between the plaintiffs and other defendants.

The court dismissed the plaintiffs' discovery motion, finding they had declared readiness for trial despite knowing of the alleged document deficiencies.

The defendants' motion for production of settlement agreements was granted in part, with individual settlement amounts ordered redacted.

The appellant appealed a summary judgment order enforcing the respondent's termination of a Fixed Price Services Agreement and its right to purchase shares in a solar power project due to the appellant's payment default.

The appellant sought to introduce fresh evidence and raised new arguments on appeal regarding the respondent's alleged defaults and the mechanics of the share transfer.

The Court of Appeal dismissed the motion for fresh evidence, finding the Palmer criteria were not met.

The Court also dismissed the appeal, holding that the motion judge made no palpable and overriding error in finding the appellant breached the agreement and that the respondent was entitled to purchase the shares.

A request to stay the judgment pending a counterclaim was also denied.

The applicant filed a human rights application alleging discrimination in housing based on sexual orientation.

Prior to the hearing, the Tribunal discovered the applicant had initiated a counter-claim in a civil defamation action commenced by the respondent, seeking damages for the same alleged discriminatory conduct.

The Tribunal dismissed the application, finding it lacked jurisdiction under section 34(11) of the Human Rights Code, which bars duplicate proceedings for the same alleged Code infringement.

The respondent requested to defer the human rights application pending the applicant's leave to appeal application to the Court of Appeal regarding a Landlord Tenant Board (LTB) decision.

The applicant opposed the request.

The Tribunal noted that deferral is discretionary and aimed at avoiding concurrent and potentially conflicting decisions.

Since neither the LTB nor the Divisional Court addressed the discrimination issues, the Tribunal found no significant danger of conflicting decisions.

The request for deferral was denied.

The moving party sought an extension of time to file an appeal from a Small Claims Court judgment enforcing a settlement regarding the sale of a defective used vehicle.

The moving party missed the 30-day appeal deadline and argued the Small Claims Court exceeded its jurisdiction by awarding damages above the original settlement amount.

The Divisional Court dismissed the motion, finding no merit to the proposed appeal because the entire action had been transferred to the Small Claims Court, which had jurisdiction to award additional damages incurred due to the moving party's breach of the settlement.

The court also found the moving party failed to demonstrate an intention to appeal within the time limit.

The appellants sought to introduce voluminous fresh evidence on appeal, conceding that without it, there was no basis to allow the appeal.

The proposed evidence consisted of discovery materials that the appellants failed to obtain before trial because they did not compel the respondents' attendance.

The Court of Appeal applied the Sengmueller test and declined to admit the fresh evidence, as it could have been obtained with reasonable diligence prior to trial.

The appeal was dismissed.

The plaintiffs brought a motion seeking a non-party production order in an action where the statement of claim had not yet been issued and served.

The documents were sought primarily to support a motion in the Court of Appeal for leave to introduce fresh evidence in a separate appeal.

The court held that Rules 30.10 and 31.10 of the Rules of Civil Procedure permit non-party production only where necessary to fairly proceed to trial.

Because the action was not yet ready for trial and the plaintiffs’ purpose was to obtain evidence for an appellate motion rather than the trial itself, the request constituted an abuse of process.

The court further held that it lacked jurisdiction to grant such relief and that any request for evidence to support a fresh evidence motion should be made to the Court of Appeal.

The defendant landlord sought leave to appeal an interlocutory order that dismissed its motion for security for costs, particulars, and a further and better Affidavit of Documents.

The motions judge had found the corporate plaintiff and its principal to be genuinely impecunious, making an order for security for costs unjust.

The Divisional Court dismissed the motion for leave to appeal, finding no good reason to doubt the correctness of the motions judge's application of the Rules of Civil Procedure, particularly regarding proportionality and the court's discretion to dispense with strict compliance.

The appellant appealed the dismissal of its action seeking a declaration that it was the beneficiary of a trust and a beneficial owner of a 50 per cent interest in a plaza.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusion that a binding trust agreement was never executed.

The court also rejected arguments regarding spoliation and hearsay, noting the trial judge was entitled to disbelieve the appellant's evidence.

The appellants appealed a trial judgment declaring that the appellant Foo was not the beneficial owner of shares in the respondent corporation.

The appellants argued the trial judge improperly relied on extrinsic parol evidence and ignored an entire agreement clause in the initial share exchange agreement.

The Court of Appeal dismissed the appeal, holding that the trial judge correctly considered extrinsic evidence given the problematic nature of the transactions, which included backdated documents, inconsistencies, and unfulfilled underlying purposes.

The court noted that even if the appellants' arguments regarding the initial agreement were accepted, a subsequent acknowledgement would have reversed the transfer anyway.

The appellant appealed a judgment ordering him and related companies to pay $229,080 to the respondents, arguing the claim was statute-barred.

The respondents cross-appealed the trial judge's reduction of the award by $174,944 and the refusal to award pre-judgment interest.

The Court of Appeal dismissed the main appeal, finding the action was commenced within the limitation period.

The Court allowed the respondents' cross-appeal regarding the $174,944 reduction, increasing the damages award to $404,024, but upheld the trial judge's refusal to award pre-judgment interest based on the parties' agreement.