Kiri McDermott-Berryman

The appellants appealed a trial judgment that dismissed their claims of substantial interference with an easement and nuisance against the respondents, while granting a permanent injunction preventing parking in the right-of-way tunnel.

The respondents cross-appealed the scope of the parking injunction.

The Court of Appeal dismissed both appeals, finding no palpable and overriding error in the trial judge's interpretation of the easement, application of the substantial interference test, or the tailored scope of the parking injunction.

The trial judge's costs award was also upheld.

The defendants brought a motion to dismiss the action by the minor plaintiffs due to the litigation guardian's failure to appoint new counsel, as required by a previous court order and the Rules of Civil Procedure.

The litigation guardian, who was self-represented for his personal claim, had not retained a lawyer for the minor plaintiffs despite over a year passing since the previous lawyers were removed from the record.

The court found insufficient evidence of diligent efforts to find counsel and emphasized the mandatory requirement for a litigation guardian to be represented by a lawyer.

The motion was granted, dismissing the minor plaintiffs' claims.

The plaintiffs brought a motion for leave to amend their statement of claim to add CML Healthcare Inc. as a defendant on the basis of misnomer in a medical malpractice action involving a delayed diagnosis of a brain tumour.

The plaintiffs originally named Oxford Medical Imaging as the owner of the imaging facility, but later discovered CML owned it at the relevant time.

The court found that the 'litigation finger' was clearly pointing at CML and that there was no non-compensable prejudice.

The motion was granted, and the plaintiffs were awarded costs of $3,000.

The moving defendants brought a motion to strike the plaintiffs' statement of claim, which alleged breach of contract, unjust enrichment, and negligent misrepresentation against the corporate directors personally.

The court struck the claims, finding that the alleged oral guarantees were unenforceable under the Statute of Frauds, the unjust enrichment claim lacked material facts, and there was no basis pleaded to pierce the corporate veil.

Leave to amend was denied for the contract and unjust enrichment claims, but granted for the negligent misrepresentation claim.