Ian Andrew Brisbin

A costs decision following a residential property dispute involving a claim for adverse possession.

The applicant succeeded in establishing adverse possession over a narrow strip of land along a backyard fence line but failed to establish adverse possession over a larger wedge of land in the side and front yard areas of the adjoining properties.

The court characterized the result as divided success but emphasized that the more significant disputed area was decided in favour of the respondents.

Applying the principle of partial indemnity costs and considering proportionality, the court awarded the respondents a portion of their costs.

The applicant was ordered to pay $6,000 inclusive of HST and disbursements.

The applicant sought a declaration of title to a disputed strip of land between neighbouring residential properties, relying on adverse possession arising before the conversion of the properties to the Land Titles system.

The court applied the test for adverse possession under the Real Property Limitations Act and the principles articulated in Ontario appellate jurisprudence requiring proof of actual, open, notorious, exclusive, and continuous possession for the statutory period.

The evidence established that a fence erected decades earlier functioned as a boundary and that the applicant’s predecessors exercised exclusive possession of the narrow strip of land south of the fence for more than ten years prior to the 1995 conversion to Land Titles.

However, the applicant failed to prove exclusive and adverse possession of the unfenced lawn area extending toward the street.

The court declared the boundary to follow the fence line in the rear yard and the registered title boundary east of the fence, vacating a previously issued injunction.

The City of Hamilton appealed a trial judgment finding it liable in negligence.

The Court of Appeal dismissed the appeal, holding that the trial judge applied the correct standard of care and that her findings were supported by the evidence.

The Court also found that the trial judge correctly applied the 'but for' test for causation, noting that causation is a practical question of fact best answered by ordinary common sense.

The Court of Appeal reviewed an application judge's decision regarding the priority of charges under the Land Titles Act.

The court found that the application judge failed to address whether post-assignment advances were made with actual notice under s. 93(4) of the Act.

The matter was remitted for the trial of an issue to determine if the $37,000 was an advance under the assigned charge and whether it was made with actual notice, without prejudice to returning the application on further evidence.

The moving party sought a review of an order by a single judge of the Court of Appeal dismissing a motion to extend the time for appealing.

The Court of Appeal dismissed the motion, finding that the single judge was correct and that the relief sought could and should have been raised during previous appeals to the court, which had already been dismissed.

The appellant jewellery store was robbed, but its video surveillance system failed to record the event due to an employee's error in operating the VCR.

The respondent insurer denied coverage, relying on a warranties endorsement requiring the system to be operational at all times insofar as it was within the Named Insured's control.

The trial judge dismissed the action, finding the employer responsible for the employee's failure.

The Court of Appeal allowed the appeal, holding that the endorsement distinguished between the 'Named Insured' and its employees, and that the insured had satisfied its obligation by instituting a reasonably fail-safe procedure.