Kurt Pearson

The applicants and respondents own neighbouring properties subdivided from a single parcel.

The respondents hold an easement over a strip of the applicants' land for pedestrian access to 'use and enjoy the shores of Lake Ontario'.

The applicants sought a declaration limiting the respondents' use to mere ingress and egress to the water.

The court dismissed the application, finding that the surrounding circumstances at the time the easement was created, including the zoning of the strip as an open space private park, indicated an intention to allow recreational use such as sitting and enjoying the view, rather than just passing through.

Costs decision following mirror-image applications concerning a dispute over the use and maintenance of a commercial condominium unit.

The court found divided success, as the applicant prevailed on the principal issue regarding a waterproofing membrane, but the respondent prevailed on several subsidiary issues.

The court also considered the applicant's refusal to participate in mediation.

The court ordered each party to bear its own costs and declined to relieve the applicant of its obligation to contribute to the respondent's legal fees through its share of common element expenses, noting this would breach s. 84 of the Condominium Act.

Cross-applications regarding the responsibility for repairing a waterproofing membrane in a commercial parking garage unit of a condominium.

The unit owner, Landont, argued the membrane was part of the common element concrete slab.

The condominium corporation, FCC 11, argued it was part of the unit and that Landont caused the damage by failing to maintain the unit.

The court held that the membrane was integrated into the concrete slab and thus formed part of the common elements, making FCC 11 responsible for its repair.

However, the court upheld FCC 11's decision to power wash the unit and charge the cost to Landont, as Landont had a duty to maintain the unit to mitigate wear and tear.

The plaintiff, the deceased's former common-law spouse, claimed entitlement to a $190,000 life insurance policy provided by the deceased's employer.

The deceased died intestate, and the estate trustees disputed the plaintiff's claim, arguing the estate was the beneficiary.

The estate trustees moved for summary judgment to dismiss the plaintiff's claim, and the plaintiff cross-moved for partial summary judgment.

The court dismissed both motions, applying the Hryniak framework to conclude that granting summary judgment would not fully dispose of the action, as claims against the employer would remain, creating a risk of duplicative proceedings and inconsistent findings on credibility.

Following a nine‑day trial concerning a neighbour dispute involving alleged flooding, trespass, and harassment, the defendants to the counterclaim successfully defended the counterclaim and obtained no damages against them.

The court found that flooding on the neighbouring property had not been exacerbated by the construction of a private golf course and that the counterclaimants failed to prove liability.

On the subsequent costs decision, the successful parties relied on a Rule 49 offer to settle which they had beaten at trial.

The court concluded the matter should never have proceeded to a lengthy trial and that the counterclaimants’ conduct made the litigation unnecessarily protracted and complex.

Costs were awarded largely in accordance with the successful parties’ proposal, including substantial indemnity costs after the offer date.

Following a nine-day trial where the defendants to the counterclaim successfully defended against allegations of exacerbating flooding on the plaintiffs to the counterclaim's property, the successful parties sought costs.

The court found that the plaintiffs to the counterclaim had unreasonably protracted the litigation and failed to accept a formal offer to settle.

Applying Rule 49, the court awarded the successful parties their costs on a partial indemnity basis up to the date of the offer and on a substantial indemnity basis thereafter, totaling $269,025.59.

The plaintiffs requested an adjournment of the trial after discovering their counsel had been suspended by the Law Society.

The defendants sought costs thrown away for trial preparation.

The court declined to award costs at this stage, finding that the plaintiffs were blameless for the delay and that the trial judge would be in a better position to determine the issue of costs based on all circumstances, including whether the trial could have proceeded earlier to mitigate costs.