Lawrence Theall

The defendants' custom-built home and garage encroached significantly onto the plaintiffs' neighbouring property.

The plaintiffs sought a mandatory injunction for the removal of the encroachment.

The defendants admitted trespass but sought an equitable remedy allowing them to retain the land, and brought a third-party claim against the builder, surveyor, and municipality for negligence and breach of contract.

The court declined to order an injunction, finding it would be oppressive to the defendants and that the injury to the plaintiffs was small and compensable by money.

The court ordered the severance and transfer of the encroached land to the defendants for compensation.

The court also found all three third parties liable for the encroachment, apportioning fault 70% to the builder, 15% to the surveyor, and 15% to the municipality, and ordered them to fully indemnify the defendants.

The plaintiff appealed a Master's order limiting the cross-examination of the defendant's counsel on his affidavit filed in an undertakings and refusals motion.

The plaintiff argued that by filing the affidavit, the defendant's counsel gave evidence on substantive issues, thereby implicitly waiving solicitor-client and litigation privilege.

The Superior Court of Justice dismissed the appeal, finding that the Master applied the correct legal test and made no palpable and overriding error in concluding that the affidavit did not constitute a waiver of privilege.